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PRECEDENTS 


INDICTMENTS, 


^^i:i.^--u>:^ 


PRECEDENTS 


INDICTMENTS; 


TO    WHICH    IS    PREFIXED 


A    C p.JN; G J S E,  \ RE A.T I ^ E 


'  'rprtiN'  THE 


OFFICE    AND    DUTY    OF   GRAND   JURORS 


By    DANIEL    DAVIS, 

SOLICITOR    GENERAL    OF    MASSACHUSETTS, 


BOSTON: 

CARTER,    HENDEE,    AND    BABCOgK. 

1831. 


.i^vJUft 


Dpi/S'      f 


Entered  accordiDg  to  act  of  Congrete^  in  Vha  yeai  li!3I,'bf'Qarter',  Fer.dee,  &  Babcock,  in  the 
Clerk's  Office  of 'ho  Tistrii-t  Court  of  Massachusetts. 


rVMBRIDOT:  :    E.  W.  METCALF  AND  CO. 


PREFATORY  REMARKS. 


The  following  volume  is  intended  to  furnish  a  more  extensive 
and  complete  collection  of  precedents  of  indictments,  than  has 
hitherto  been  contained  in  any  one  ivork  upon  that  subject ;  and 
to  reduce  them  to  as  great  a  degree  of  conciseness  and  simplici- 
ty as  may  be  consistent  with  their  correctness  and  validity.  In 
the  forms-  herein  contained,  the  obsolete  language  ;  the  ancient 
but  unnecessary  technical  phrases ;  and  the  superfluous  prefa- 
tory allegations  and  averments,  which  are  still  retained  in  the 
English  and  American  collections,  have  been  rejected.  There 
is  no  reason  why  they  should  continue  to  lengthen  and  incumber 
the  records  of  the  judicial  courts.  It  seems  singular,  that  the 
best  and  most  modern  compilers  of  these  precedents,  should 
retain  allegations  and  averments,  so  long  since  exploded  ;  and,  at 
the  same  time,  carefully  note  the  authorities  by  which  they  have 
been  decided  to  be  unnecessary  and  superfluous. 

In  rejecting  this  unnecessary  and  superfluous  matter,  care  has 
been  taken  to  refer  to  the  authorities  upon  which  the  improve- 
ment has  been  adopted.  It  will  be  found,  therefore,  that  by 
pursuing  this  course,  the  precedents  in  this  collection  are  more 
concise  and  simple,  than  those  heretofore  in  use.  Yet  it  is  pre- 
sumed, that  every  thing  has  been  retained  which  can  be  neces- 
sary to  their  validity.  There  is  no  better  reason  for  retaining 
the  obsolete,  and,  in  some  instances,  it  may  be  said,  the  exploded 
langua2;e  found  in  the  ancient  forms  in  criminal  processes,  than 
there  would  be  in  retaining  the  costume  of  the  age  in  which  it  was 


vi  PREFATORY  REMARKS. 

first  adopted.  After  the  highly  important  example  of  the  British 
government  in  improving  the  criminal  code  of  that  nation,  by 
abolishing  some  of  the  most  shocking  principles  and  rules  of 
their  ancient  common  law  relative  to  certain  crimes  and  offences, 
It  would  be  particularly  proper  and  appropriate,  to  abolish  the 
strange,  and,  in  some  instances,  the  sneer-exciting  language  in  the 
forms  of  process  used  for  enforcing  them. 

It  has  been  suggested,  and  it  may  probably  be  true,  that  there 
is  no  work,  either  in  England  or  America,  which  contains  a  com- 
plete collection  of  precedents  of  indictments.  Chitty's  collection 
is  extensive  and  valuable  ;  but  the  work  which  contains  it,  is 
voluminous  and  expensive  ;  a  great  proportion  of  which  is  made 
up  of  English  statutes,  and  precedents  founded  upon  them, 
which  have  no  force  or  operation  in  our  country.  The  collec- 
tions in  Starkie  and  other  modern  compilers,  are  evidently  incom- 
plete. The  same  may  be  said  of  Tremaine,  and  of  the  collec- 
tions in  the  Crown  Circuit  Companion,  and  Crown  Circuit  Assist- 
ant. Mr.  Wentworth's  work  may  be  considered  an  exception  to 
the  above  remark.  But  its  immense  size,  and  the  appalling 
length  of  his  forms  and  precedents,  render  the  use  of  it  inconven- 
ient and  laborious. 

It  is  anxiously  hoped,  that  this  undertaking  will  meet  the  appro- 
bation of  the  profession.  Many  of  the  precedents  were  drawn 
by  the  author,  and  are  original  with  him.  Most  of  these  have 
been  drawn  in  cases  which  have  occurred  in  the  course  of  his 
official  duty ;  and  have  been  sanctioned  by  the  courts  before 
which  they  were  returned. 

The  book  might  have  been  increased  to  double  its  size,  if  the 
course  relative  to  the  prolixity  of  the  forms  in  other  similar  col- 
lections had  been  pursued.  It  is  a  fact,  that  the  forms  in  most  of 
the  English  precedents  have  been  substantially,  and  it  may  be 
said,  verbally,  the  same  for  several  centuries,  without  alteration  or 


PREFATORY  REMARKS.  vii 

improvement ;  and  have  been  thus  transcribed  and  transferred 
from  one  book  of  precedents  to  another,  down  to  the  latest  pub- 
lications upon  the  subject.  They  are,  moreover,  loaded  with 
numerous  counts,  apparently  varying  from  each  other  in  nothing 
material ;  and  of  course  protracting  the  precedents  to  an  unneces- 
sary and  unreasonable  length.  This  inconvenience,  not  to  say 
reproach  upon  the  forms  of  proceeding  in  criminal  prosecutions, 
has  been  avoided  in  the  following  work ;  which  is  the  result  of 
thirty  years'  uninterrupted  official  experience,  acquired  under  the 
advice  and  correction  of  distinguished  judges  and  professional 
friends  during  that  period. 

The  law  relative  to  the  duty  of  Grand  Juries,  particularly  as  to 
the  mode  of  conducting  public  prosecutions  before  them,  requires 
to  be  explained  and  better  understood.  This  mode  is  somewhat 
different  in  different  States ;  that  which  is  stated  in  the  following 
concise  remarks,  particularly  as  it  respects  the  duty,  rights,  and 
manner  of  conducting  the  examinations  by  the  public  prosecutor 
before  the  Grand  Jury,  is  the  same  that  the  author  has  pursued 
during  the  whole  period  of  his  official  intercourse  with  them  ;  and 
in  reference  to  the  laws  and  usages  of  the  State  wherein  the 
duties  of  the  office  have  been  discharged,  have  been  found  not 
only  to  be  liable  to  no  objections,  but  to  contribute  greatly  to  the 
despatch  of  the  public  business.  The  concise  remarks  and  ex- 
planations upon  this  and  the  other  subjects  prefixed  to  the  prece- 
dents in  this  volume,  it  is  hoped  may  not  be  without  their  use. 

*^*  The  quotations  in  the  following  work,  from  Chitt.  Cr.  L.  are  from 
Ryley's  Edition.  The  references  to  the  pages  are  according  to  the 
English  Edition,  which  are  preserved  in  that  work. 

The  quotations  from  Starkie's  Cr.  PL  are  from  the  London  Edition 
of  1814. 


CONCISE    TREATISE 


UPON  THE 


OFFICE  AND  DUTY  OF  GRAND  JURORS. 


The  institution  of  grand  jurors  is  one  of  the  most  ancient 
which  we  derive  from  our  English  ancestors.  It  is  known  to 
have  existed  for  nearly  a  thousand  years;  for  we  find  that  so 
anciently  as  the  reigns  of  Ethelred  and  Richard  the  First,  the 
mode  of  electing  the  grand  jury  was  altered  and  regulated.^ 

The  institution,  therefore,  must  have  existed  prior  to  the 
reigns  of  those  monarchs  ;  the  former  of  which  commenced  in 
the  year  eight  hundred  and  sixty-six.^ 

A  statement  of  the  history  of  grand  juries,  in  the  time  of 
Bracton,  is  given  3  Reeves'  H.  E.  L.  133.  In  the  time  of 
Bracton,  in  the  reign  of  Henry  the  Third,  the  presentment  of 
offences  was  by  a  grand  jury  of  twelve,  returned  from  every 
hundred  in  the  county.  But  that  practice  had  now  received 
some  alteration ;  for  towards  the  close  of  this  reign,  at  a  com- 
mission of  oyer  and  terminer,  besides  the  return  of  an  inquest 
for  every  hundred  by  the  bailiff,  the  sheriff  also  returned  a 
panel  of  knights,  which  were  called  the  Grand  Inquest.      The 

1  1  Chitt.  306 ;    Co.  Litt.  115  b ;     4  Bl.  Com.  302 ;    WUk.   Leges  Angl. 
Sax.  117. 

*  He  was  brother  to  Alfred  the  Great,  and  was  killed  in  the  year  eight  hun- 
dred and  seventy-one. 

1 


2  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

inquests  for  the  hundreds  still  made  their  presentments,  as  in 
Bracton's  time ;  and  also,  no  doubt,  found  indictments.  But 
these  were  confined  to  iheir  different  hundreds.  The  grand 
inquest  was  to  inquire  for  every  hundred  in  the  county;  and  if 
a  commission  of  assize  and  nisi  prius  were  silting,  they  filled 
the  places  of  jurors  in  civil  cases. 

When  the  practice  began  of  returning  a  grand  inquest  to 
inquire  for  the  whole  body  of  the  county,  the -business  of  the 
hundred  inquest  must  naturally  decline ;  till,  at  length,  the 
whole  burden  of  presenting  and  finding  indictments  devolved 
upon  the  Grand  Inquest,  and  the  hundred  continued  to  be 
summoned  merely  for  trying  issues. 

There  can  be  no  institution,  designed  to  co-operate  with  the 
judicial  powers  in  the  detection  and  punishment  of  crimes, 
more  perfect  than  that  of  grand  juries.  It  is  one  of  their  most 
important  duties,  however,  to  protect  the  innocent  against  the 
groundless  and  malicious  accusations  which  are  too  frequent  in  a 
government  where  any  person  may  obtain  and  pursue  a  public 
prosecution  at  the  expense  of  the  slate. 

The  character  and  respectability  of  this  institution  may  de- 
pend in  some  degree  upon  the  mode  in  which  its  members  are 
selected.  This  mode  is  different  in  the  country  of  our  English 
ancestors,  from  what  it  is  in  New  England.  The  municipal 
institutions  in  the  two  countries  may  account  for  this  difference. 
In  England,  the  grand  jury  are  selected  and  returned  by  the 
sheriff  of  the  county.  In  our  country,  they  are  selected  by 
lot,  from  a  body  of  the  most  respectable  citizens  in  the  several 
towns  in  the  county,  whose  names  are  kept  in  a  box,  which  is 
called  "  the  jury  box,"  and  from  which  the  grand  jurors  are 
drawn.  The  statutes  prescribe  their  qualifications,  and  the  man- 
ner in  which  they  shall  be  selected.  Long  experience  and  ob- 
servation upon  the  subject  authorize  the  assertion,  that  this 
mode  of  constituting  the  grand  jury  is  unexcepfionable. 

The  mode  of  making  this  selection  in  England,  above  alluded 
to,  has  heretofore  been   as  follows.^     A  precept  issues  either  in 

>  1  Chitt.  310  ;  2  Hale,  153-4  ;  Bac.  Abr.  Juries,  ^.  B. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  3 

the  name  of  the  king,  or  of  two  or  more  justices,  directed  to  the 
sheriff;  upon  which  he  is  to  return  the  number  required  out  of 
the  whole  county  ;  that  is,  a  sufficient  number  from  every  hun- 
dred, from  which  the  grand  jury  is  selected.^  By  this  mode, 
the  grand  jury  is  composed  of  members  selected  and  returned, 
at  the  will  and  pleasure  of  an  individual  officer  of  the  govern- 
ment. 

This  is  a  power  liable  to  abuse  and  evasion,  and  was  the 
subject  of  complaint  fmd  parliamentary  interference  as  long  ago 
as  the  reign  of  Henry  the  Fourth.^  It  appears  by  the  preamble 
to  the  statute  of  the  11th  of  Henry  the  Fourth  (420  years  ago), 
that  "  of  late,  inquests  were  taken  of  persons  named  to  the 
justices,  without  due  notice  to  the  sheriff;  of  which  persons 
some  were  outlaived ;  some  fled  to  the  sanctuary  for  treason, 
and  some  for  felony,  by  which  many  persons  were  indicted 
who  were  not  guilty,  by  conspiracy,  abetment,  and  false  imagi- 
nations of  other  persons,  for  their  special  advantage,  and  singular 
lucre. ''^ 

The  selection  of  a  grand  jury,  by  a  single  officer  of  the 
government,  cannot  be  the  best  or  safest  mode.  If  the  possi- 
bility of  evasion  or  prostitution  of  duty  may  be  supposed  to 
exist,  the  means,  which  an  unprincipled  citizen  can  employ  to 
effect  his  object,  may  be  resorted  to  with  greater  facility  where 
one  person  only  possesses  all  the  power  to  act,  than  can  possibly 
exist  in  the  mode  of  selecting  the  grand  jury  in  the  New  Eng- 
land States. 

From  long  experience  and  observation  it  may  be  safely  as- 
serted, that  no  body  of  men,  designated  to  exercise  important 
powers  and  functions  connected  with  the  judicial  department  of 
our  government,  have  been  more  respected,  or  concerning 
whom  die  public  opinion  has  uniformly  been  more  favorable, 
than  the  grand  jurors,  selected  and  organized  according  to  the 
laws  and  usages  of  our  happy  country. 


'  By  a  late  statute  of  6  Geo.  4,  c.  59,  the  laws  of  England,  relative  to  the 
qualifications  aiid  appointment  of  jurors,  have  been  revised.  —  See  Collier's 
Analysis. 

2  2  Hawk.  c.  25,  §  23. 


4  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

In  the  following  remarks  upon  the  Office  and  Duty  of  Grand 
Jurors,  I  shall  state, 

First.  Their  number  and  qualifications,  as  required  by  law. 

Secondly.  The  mode  of  selecting  and  summoning  them. 

Thirdly.  The  course  of  proceeding  after  their  appearance  in 
court.     Their  oath  ;    its  nature  and  obligations. 

Fourthly.  The  right  of  challenging  grand  jurors,  and  the 
right  of  the  court  to  instruct  them  as  to  the  principles  of 
evidence. 

Fifthly.  The  mode  of  proceeding,  after  the  grand  jury  are 
organized. 

Sixthly.  The  nature  of  the  evidence  to  be  submitted  to  them, 
and  the  principles  and  grounds  upon  which  it  is  to  be  received 
and  decided  upon  by  them. 

Seventhly.  The  right  of  the  grand  jury  to  compel  the  at- 
tendance of  witnesses.     The  finding  of  the  bills.  Sic. 

Eighthly.  The  amendment  of  indictments  by  the  order  of 
court,  and  the  consent  of  the  grand  jury. 

First.  Their  number  and  qualifications,  as  required   by  law. 

The  grand  jury  must  consist  of  twelve  at  least;  and  may  con- 
tain any  greater  number,  not  exceeding  twenty-three. 

There  must  be  twelve  at  least ;  because  no  bill  of  indictment 
can  be  found,  unless  by  the  concurrence  of  that  number. 
And  there  must  not  be  more  than  twenty-three  ;  otherwise  there 
might  be  an  equal  division,  and  two  full  juries  might  disagree  in 
opinion.^ 

It  is  clearly  settled,  that  by  the  common  law,  all  persons  serving 
upon  the  grand  inquest,  "  must  be  good  and  lawlul  men  "  ;  by 
which  it  is  intended,  that  they  must  be  citizens  of  the  state  in 
which  their  duties  are  discharged.^  And  it  is  also  setded,  that  no 
person  wiio  has  been   convicted   of  an  infamous  crime,  such  as 

1  1  Chitt.  306,  311 ;  2  Hale,  151  ;  Hawk.  b.  2,  c.  25,  §  16;  Bac.  Abr. 
Juries,  A  ;  4  Bl.  Com.  302. 

2  2  Hale,  155  ;  2  Hawk.  c.  25,  §  16  ;  Bac.  Abr.  Juries,  A;  Indictment,  C  ; 
1  Chitt.  307,  and  other  authorities  there  cited. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  5 

perjury,  forgery,  conspiracy,  &c.  can  be  permitted  to  serve  on 
the  grand  jury.  And  if  a  man  thus  disqualified  be  returned,  he 
may  be  challenged  by  the  party  accused,  before  the  bill  is  pre- 
sented ;  or  if  it  be  discovered  afterwards,  he  may  plead  it  in 
avoidance,  on  producing  the  record  of  conviction  on  which  the 
disqualification  is  founded.^  But  this  objection  ought  to  be 
made  by  the  party  before  his  trial  ;  odierwise  it  may  be  doubt- 
ful whether  he  can  be  permitted  to  do  it  afterwards,  unless  it 
can  be  verified  by  the  records  of  the  same  court  in  which  the 
indictment  may  be  pending.^  It  is  also  necessary,  at  common 
law,  (and  doubtless  by  the  statutes  under  which  the  grand  jury 
are  summoned.)  that  the  persons  composing  the  grand  jury 
should  be  inhabitants  of  the  county  for  which  they  are  returned 
to  serve. ^ 

The  foregoing  remarks  upon  this  point  are  founded  upon 
English  authorities.  But  the  question  has  been  settled  in  the  case 
of  Commomocalthv.  Smith,  9  Mass.  R.  110.  The  words  of 
Seivall  J.,  who  delivered  the  opinion  of  the  court  in  that  case, 
are,  "  Objections  to  the  personal  qualifications  of  jurors,  on  the 
legality  of  the  returns,  are  to  be  made  before  the  indictment  is 
found  ;  and  may  be  received  from  any  person  who  is  under  a 
presentment  for  any  oflence  whatever,  or  from  any  person 
present  who  may  make  the  suggestion,  as  amicus  curiis."  In  a 
subsequent  case,  however,  of  Commonwealth  v.  Parker  et  al. 
2  Pick.  668,  Chief  Justice  Parker  suggests  a  doubt, 
whether  it  would  be  safe  to  adopt  the  above  remarks  of  the 
court  in  Smith's  case,  in  their  full  extent.  His  words  are,  "  We 
have  some  doubts  as  to  the  correctness  of  them  in  all  cases ; 
and  the  case  in  which  they  were  made,  was  determined  upon 
another  point." 

^  See  the  authorities  next  above  quoted. 

2  Hawk.  b.  2,  c.  25,  §  27  ;  Bac.  Abr.  Juries,  A  ;  1  Chitt.  307-8  ;  See  also 
Gord.  Dig.  p.  730.  —  There  seems  to  be  no  reason  why  a  conviction,  in  any 
court  having  jurisdiction,  should  not  be  considered  as  a  disqualification,  as 
well  as  that  in  which  the  indictment  may  be  pending. 

3  Hawk.  b.  2,  c.  25,  §  16. 


0  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

The  qualifications  of  grand  jurors,  as  they  respect  their 
property,  character,  and  residence,  are,  in  the  United  States,  as 
in  England,  regulated  by  particular  statutes.  In  a  concise 
treatise  of  this  kind  it  would  be  inconvenient  to  insert  the  stat- 
ute provisions  of  the  several  States  upon  this  subject.  They 
can  be  referred  to  by  all  who  have  occasion  to  know  them. 
Those,  however,  of  the  state  of  Massachusetts,  and  of  the 
United  States,  and  several  decisions  upon  this  subject  in  the 
courts  of  the  United  States,  will  be  referred  to  and  stated. 

By  t:.e  statute  of  Massachusetts  of  1812,  ch.  141,  §  2,  the 
qualifications  of  jurors  are  pointed  out.  It  is  therein  enacted, 
"that  the  selectmen  in  each  town  or  district  in  this  common- 
wealth shall  provide,  and  at  all  times  cause  to  be  kept,  in  their 
respective  towns,  one  jury  box  ;  and  shall,  once  at  least  in  three 
years  afterwards,  prepare  a  list  of  such  persons,  under  the  age 
of  seventy  years,  in  their  respective  towns,  as  they  shall  judge 
well  qualified  to  serve  as  jurors  ;  being  persons  of  good  moral 
character,  and  qualified  as  the  constitution  directs,  to  vote  in  the 
choice  of  Representatives.''''  By  the  constitution  of  Massachu- 
setts, chap.  1,  sect.  3,  art.  4,  "  Every  male  person,  heing  twenty- 
one  years  of  age,  and  resident  in  any  particular  town  in  this 
Commonwealth,  having  a  freehold  estate  within  the  same  town 
of  the  annual  income  of  three  pounds,  or  any  estate  of  the  val- 
ue of  sixty  pounds,"  had  a  right  to  vote  in  the  choice  of  Rep- 
resentatives for  said  town.  But  by  the  third  article  of  the 
Amendments  of  the  constitution,  these  qualifications  are  altered, 
and  others  substituted.  This  article  in  the  Amendments  is  as 
follows. 

"  Every  male  citizen  of  twenty-one  years  of  age  and  upwards, 
(excepting  paupers,  and  persons  under  guardianship,)  who  shall 
have  resided  widiin  the  Commonwealth  one  year,  and  in  the 
town  or  district,  in  which  he  may  claim  a  right  to  vote,  six  cal- 
endar months  next  preceding  any  election  of  Governor  &c.  or 
Representatives,  or  who  shall  have  paid  by  himself,  or  his  parent, 
master,  or  guardian^  any  state  or  county  tax,  which  shall,  with- 

'  There  is  a  singular  discrepancy  in  the  wording  of  this  article,  in  the  case  of 
persons  under  guardianship.     In  the  former  part  of  it,  persons  under  guardian- 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  7 

in  two  years  next  preceding  such  election,  have  been  assessed 
upon  him,  in  any  tQwn  or  district  of  this  Commonwealth ;  and 
also  every  citizen,  who  shall  be  by  law  exempted  from  taxation, 
and  who  shall  be  in  all  other  respects  qualified  as  above  men- 
tioned, shall  have  a  right  to  vote  in  such  election  of  Governor 
&c.  and  Representatives ;  and  no  other  person  shall  be  entitled 
to  vote  in  such  elections." 

The  qualifications  of  jurors,  as  they  respect  property,  charac- 
ter, and  residence, ..are  fully  pointed  out  by  the  above  references 
to  the  laws  and  constitution  of  Massachusetts. 

In  the  case  of  United  States  v.  Burr,  i.  37,  it  was  decided, 
that  where  the  state  law  fixes  the  number  of  grand  jurors,  the 
Circuit  Court  is  governed  thereby  ;  and  that  if  there  are  deficien- 
ces  on  the  panel,  they  must  be  supplied  by  the  by-standers. 
By  this  decision  it  is  understood,  that  the  right  to  return  jurors, 
de  talibus  cii-cumstantibi(s,  may  be  extended  to  grand  jurors.  But 
this  does  not  appear  to  be  authorized  by  the  act  of  the  United 
States  of  September  24,  1789.  The  direction  to  return  jurors 
de  talibus  circumstcmtibus,  there  contained,  refers  to  the  trial,  by  a 
traverse  jury,  "  of  civil  and  criminal  causes."  ^  It  may  be  doubted 
whether  any  court  can  exercise  the  power  of  ordering  grand 
jurors  to  be  returned  from  the  "  by-standers,"  without  legislative 
authority  for  that  purpose.  In  several  States,  this  power  is  ex- 
pressly given  in  the  statutes  regulating  the  mode  of  selection  and 
summoning  the  grand  jury.  But  it  cannot  be  exercised  in 
those  States  where  the  power  is  not  thus  given. 

Secondly.  The  mode  of  selecting  and  summoning  grand 
jurors. 

The  mode  of  selecting  and  summoning  grand  jurors  is  regu- 
lated in  the  several  States,  by  statutes  for  that  purpose ;  and  in 
the  tribunals  of  the  United  States,  by  the  act  of  Congress  estab- 
lishing the  judicial  courts.     The  most  usual  mode  of  selection  is 

ship  are  expressly  excepted  from  the  right  of  voting.     In  the  part  here  extract- 
ed, any  person  who  shall  have  paid,  by  himself  or  his  guardimi,  any  state  tax 
&c.,  shall  have  a  right  to  vote.     The  appointment  of  a  guardian  presupposes, 
in  all  cases,  either  minority  or  some  other  disqualification. 
*  See  Gordon's  Digest,  Art.  956,  p.  143. 


8  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

by  lot.  In  Massachusetts  they  were  formerly  chosen  in  the 
same  manner  that  other  town  officers  were ;  and  the  same 
persons  were  usually  selected  for  a  succession  of  years. 

The  common  law  authorities,  and  British  statutes  upon  this 
subject,  have  little  applicability  in  this  country.^  The  usage  in 
England  has  varied  in  different  counties ;  in  some  of  which, 
two  full  grand  juries  are  summoned  for  the  same  court.  This 
mode  of  summoning  double  the  number  necessary,  and  then 
selecting  the  panel  from  that  number,  is  entirely  repugnant  to  all 
our  theory  and  practice  in  regard  to  the  institution  of  grand 
jurors.^ 

The  mode  of  selecting  and  summoning  grand  juries  in 
Massachusetts  is  provided  for  in  the  statutes  of  1807,  ch.  140, 
and  1812,  cli.  141,  to  which  the  reader  is  referred. 

By  the  act  of  Congress  of  September  24,  1789,  §  29,  the 
mode  of  designating  juries  is  provided  for,  which  act,  so  far  as 
it  relates  to  this  subject,  may  be  found  in  Gordon's  Digest,^ 
to  which  the  reader  is  also  referred.^ 

Thirdly.  The  course  of  proceeding  after  their  appearance 
in  court.     Their  oath  ;  its  nature  and  obligadons. 

The  course  of  proceeding  at  the  opening  of  the  courts  in  this 
country  is  substantially  the  same  as  that  at  the  assizes  in  Eng- 
land, with  the  exception  of  reading  the  commission  of  assize, 
oyer  and  terminer,  and  nisi  prius.^  Proclamation  is  made  for  those 
persons  who  are  returned  to  serve  on  the  grand  inquest  for  the 
body  of  the  county,  to  answer  to  their  names ;  and  if  it  appear 
that  a  sufficient  number  are  present  to  constitute  a  grand  jury, 
tlie  oath,  prescribed  by  law  to  be  taken  by  the  grand  jury,  is 
administered  by  the   clerk  of  the  court,  in  the  presence  and  by 

*  1  Chitt.  310,  311.  See  ante,  p.  2,  where  the  mode  of  summoning  the 
Grand  Jury  in  England  is  stated.     Bac.  Abr.  Juries,  A. 

2  See  Collier's  Analysis  of  the  Criminal  Statutes  of  England,  containing  a 
late  statute  of  6  Geo.  4,  c.  59,  in  which  all  the  laws  of  England,  relative  to 
the  qualifications  and  appointment  of  jurors,  have  been  revised  and  condensed. 

3  Gord.  Dig.  Art.  9.5.5.  p.  143. 

*  See  Collier's  Analysis,  ubi  supra. 

5  1  Chitt.  313,  314,  and  the  authorities  there  cited. 


OFFICE  AND  DUTY  OF  GRAND  JURORS. 


order  of  the  court ;  previous  to  which  the  clerk  prepares  alpha- 
betical lists,  from  the  returns  on  the  venires  of  the  names  of  the 
persons  returned  as  grand  jurors.  The  court  then  cause  the 
two  persons  who  stand  first  on  this  list,  to  be  called  and  sworn  ; 
and  after  this,  the  others  in  succession,  as  they  are  named  in  the 
list,  in  such  divisions  as  have  been  usual,  or  as  by  the  court  may 
be  deemed  proper.  The  oath  is  then  administered,  in  the  form 
prescribed  by  the  statute,^  to  which  the  reader  is  referred,  and 
which  will  be  particularly  referred  to  hereafter. 

The  charge  to  the  grand  jury  is  now  given  by  the  court  f 
whereupon  they  retire,  under  the  care  and  charge  of  one  or 
niore  officers  of  the  court,  to  be  organized  as  the  statute  directs, 
and  to  discharge  the  duties  of  their  office.  They  first  elect  a 
foreman,  by  ballot,  and  notify  the  court,  by  the  officer  appointed 
to  attend  them,  of  the  person  thus  elected,  whose  name  is  to  be 
recorded  as  such  foreman  by  the  clerk  of  the  court.  The  fore- 
man of  each  grand  jury  is  expressly  authorized,  by  the  statute 
of  IMassachusetls  before  quoted,  in  the  presence  of  the  attorney 
general,  solicitor  general,  or  county  attorney,  to  swear  any  wit- 
nesses, to  testify  before  such  grand  jury ;  and  it  is  made  his 
duty  to  return  to  the  court  by  which  they  were  impanneled,  a 
certified  list  of  all  witnesses  so  sworn,  before  the  grand  jury  shall 
be  discharged  from  their  attendance  upon  the  court ;  which  list 
is  to  be  filed  and  entered  of  record  by  the  clerk  thereof.  The 
form  of  the  oath  usually  required  of  a  witness,  to  be  taken  before 
the  grand  jury,  is  as  follows  :  "  You  swear,  that  the  testimony 
which  you  shall  give  to  the  grand  jury,  relative  to  any  matters  ||l||, 
and  things  which  may  come  before  them,  shall  be  the  truth,  the  W 
whole  truth,  and  nothing  but  the  truth,  so  help  you  God."  This 
mode  of  procedure,  relative  to  swearing  the  witnesses  by  the 
foreman  of  the  grand  jury,  and  a  list  of  their  names  returned  and 
recorded  in  the  court,  was  never  practised  in  this  State,  prior  to 
the  statute  of  1807,  c.  140.  But  all  witnesses,  to'  be  examined 
before  the  grand  jury,  were,  before  the  passing  of  that  act,  sworn 


»  Stat.  Mass.  1807,  c.  140,  §  14. 

*  See  the  excellent  remarks  upon  the  performance  of  this  duty,  1  Chitt.  312. 


10  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

in  open  court,  upon  the  motion  of  the  attorney  general,  or  public 
prosecutor.  No  record  was  ever  made  of  the  names  of  the 
witnesses  thus  sworn  and  examined  ;  and  of  course  there  existed 
no  means  of  proving  the  fact  of  their  being  thus  sworn  and  ex- 
amined, but  in  the  recollection  of  those  who  had  knowledge  of 
it.  The  object  of  the  legislature  in  this  change  of  the  mode  of 
swearing  the  witnesses,  and  perpetuating  the  evidence  of  the 
fact,  and  of  the  names  of  the  witnesses,  is  not  expressed  or 
indicated  in  any  part  of  the  statute ;  but  this  object  undoubtedly 
was,  to  furnish  and  perpetuate  legal  and  competent  proof  of  die 
fact  of  the  swearing  of  the  witness,  in  all  cases  where  it  might  be 
necessary  to  prove  it ;  and  most  probably  with  a  special  refer- 
ence to  prosecutions  for  perjury,  committed  by  witnesses  in  their 
testimony  before  the  grand  jury. 

The  form  of  the  oath  of  a  grand  jury,  prescribed  in  the 
statute  of  Massachusetts,  of  1807,  c.  140,  §  14,  is,  in  substance, 
and  nearly  in  words,  die  same  as  it  lias  been  in  England,  for 
several  centuries.  That  which  is  administered  in  succession  to 
the  members  of  die  grand  jury,  after  the  two  first,  resembles, 
in  a  striking  manner,  tlie  substance  of  the  one  used  as  long  ago 
as  the  time  of  Bracton,  in  the  reign  of  Henry  die  Third.  Our 
form  is,  " The  same  oath  which  }our  fellows  have  taken  on  their 
part,  you,  and  each  of  you,  on  your  behalf,  shall  well  and  truly 
observe  and  keep."  The  form  of  a  similar  oath  in  the  time  of 
Bracton  was,  "  The  oath  which  John  here  has  taken,  1  will  keep 
on  my  part  ;  so  help  me  God  and  these  holy  Gospels.^^  ^ 

Prior  to  the  statute  of  1807,  c.  140,  the  foreman  of  the  grand 
jury  was  appointed  by  the  court ;  and  the  whole  oath  was  ad- 
ministered first  to  the  foreman ;  the  commencement  of  which 
was  made  conformable  to  the  then  practice  in  all  instances  where 
the  foreman  was  appointed  by  the  court,  viz.  "  You,  as  foreman 
of  this  inquest  for  the  body  of  this  county  of  S.,  do  swear,  &tc." 
And  the  oath,  subsequendy  administered  to  the  members  of  the 


1  3  Reeves'  H.  E.  L.  133.  The  form  of  a  Grand  Juror's  oath,  as  used  in  the 
English  courts,  is  given  in  Cr.  C.  C,  p.  11,  6th  Ed.  I  find  no  otlier  form  of  it 
in  any  of  the  vyritors  upon  criminal  pleading,  fiom  the  time  of  Tremaine. 


OFFICE  AND  DUTY  OF  GRAIfD  JURORS.  H 

grand  jury,  was,  of  course,  made  conformable  to  it,  viz.  "  The 
some  oath  which  your  foreman  hatli  taken,  on  his  part,  you,  and 
each  of  you,  on  your  behalf,  shall  well  and  truly  observe  and 
keep." 

The  nature  of  the  oalh,  and  the  duties  and  obligations  it  im- 
poses, are  very  explicitly  pointed  out  in  the  words  of  it.  "  You 
shall  diligently  in([uire,  and  true  presentment  make."  The 
meaning  of  this  branch  of  the  oath  can  be  nothing  more  than 
that  a  patient  and  impartial  investigation  shall  be  besfowcd  upon 
every  subject  properly  and  legally  submitted  to  the  consideration 
and  inquiry  of  the  grand  jury.  It  cannot  extend  to  any  inquiry, 
or  to  any  matter  whatever,  not  within  their  jurisdiction  ;  that  is, 
to  nothing  but  the  evidence  brought  before  them,  of  the  crimes 
and  offences  committed  within  the  body  of  the  county  for  which 
they  are  sworn  to  inquire. 

The  practice,  not  uncommon  in  some  parts  of  the  United 
Stales,  of  bringing  forward,  in  the  form  of  presentments,  what 
are  denominated  public  grievances,  relative  to  the  political  or 
moral  slate  of  the  country,  is  altogether  extra-official,  and  may 
be  and  has  been  adopted  and  pursued  for  purposes  foreign  to, 
and  inconsistent  with,  the  nature  of  the  institution  ;  and  perhaps 
it  is  not  too  much  to  assort,  that  the  opportunity  has  been  used 
and  |)erverted  to  party  purposes,  and  with  an  intention  to  produce 
an  effect  upon  public  measures  and  the  public  mind.  When- 
ever this  shall  be  the  case,  it  is  to  be  considered  in  the  same 
light  as  any  other  usurpation  or  abuse  of  the  judicial  autlioritj''. 
It  may,  with  the  same  propriety,  be  exercised  by  any  other 
branch  of  the  judicial  power ;  by  the  court,  or  the  traverse  jury, 
as  well  as  the  grand  jury. 

"  Of  all  such  matters  and  things  as  shall  be  given  you  in 
cbarge."  The  practice  of  the  court,  to  instruct  the  grand  jury 
in  the  nature  of  their  duty,  by  what  is  called  ihc .chni-ge,  is  very 
ancient,  and  comprises  a  full  and  clear  definition  and  descrip- 
tion of  all  the  crimes  and  offences  of  which  it  is  their  duty  to 
take  cognizance.  It  also  conveys  to  them  the  most  important 
and  necessary  instructions  as  to  die  manner  in  which  their  busi- 
ness ought  to  be  conducted,  the  nature  of  the  evidence  to  be 


12  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

submitted  to  them,  and  the  rules  and  principles  upon  which  it  is 
to  be  applied.  The  ofTonces,  which  the  grand  jury  may  make 
the  subjects  of  their  inquiry,  are  not,  strictly  spcakina;,  restricted 
to  those  which  may  be  enumerated  in  the  charge  of  the  court. 
Some  oftences  may  have  been  committed  during  the  session  of 
the  court,  after  the  grand  jury  have  received  their  charge,  and 
before  they  are  dismissed.  In  these  cases  they  have  the  same 
right  to  examine  and  present  them,  as  though  they  had  been 
specially  directed  concerning  them,  in  the  charge  of  the  court ; 
and  where  an  olTence  has  come  to  the  knowledge  of  any  of  the 
body,  it  is  their  duty  to  communicate  it  to  the  grand  jury,  that 
such  proceeding  may  be  had  as  they  may  think  their  duty  re- 
quires. 

A  most  important  injunction,  in  die  oath  of  a  grand  juror,  is 
that  which  imposes  upon  him  the  obligation  of  secrecy.  The 
words  of  it  are,  "  The  Commonwealth's  counsel,  your  fellows', 
and  your  own,  you  shall  keep  secret."^ 

Secrecy  is  not  only  consistent  with,  but  essential  to  the  nature 
of  this  institution.  It  has  been  held  that  the  true  object  of  the 
secrecy  required  is  to  prevent  the  evidence  produced  before  the 
grand  jury  from  being  counteracted  by  subornation  of  perjury  on 
the  part  of  the  defendant.^  The  obligation  to  preserve  it  extends 
to  every  transaction  which  takes  place  in  the  presence  of  the 
grand  jury,  and  cannot  be  violated  without  a  flagrant  breach  of  the 
oath.  This  violation  is  a  high  misprision,  and  a  finable  offence.^ 
It  connects  and  involves  the  duty  of  the  juror  with  the  interest  and 
safety  of  the  government,  with  all  the  other  members  of  the  grand 
jury,  and  whh  his  own  responsibility  and  conscience  ;  and  it  is  a 
duty  which  a  citizen  is  under  the  highest  obligation  to  discharge, 
faithfully,  and  with  a  good  conscience.  Notwithstanding  which, 
it  is  one  of  the  most  common  occurrences  in  the  history  of  grand' 
juries,  to  find  it  disregarded.  It  is  proper,  however,  to  add,  that 
this  evil  arises  generally  more  from  indiscretion,  and  want  of  con- 

'  See  Hawk.  b.  1,  c.  21,  §  15. 

2  4  Black.  Com.  126,  Chrislian's  note  (5) ;  1  Chitt.  317. 

3  2  Hale,  161 ;  4  Black.  Com.  126,  Christian's  note  (5)  ;  1  Chitt.  317. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  13 

sciousness  of  its  pernicious  consequences,  than  from  any  criminal 
design  to  injure  or  betray  the  interest  of  the  government.  The 
following  are  some  of  the  pernicious  effects  of  it.  As  soon  as 
the  decision  of  the  grand  jury  is  made,  in  a  case  pending  before 
them,  if  it  be  against  the  party  accused,  the  fact  comes  to  his 
knowledge  ;  and  he  then  has  an  opportunity  to  abscond,  if  he 
is  held  by  recognisance  only.  Another  common  and  serious 
result  of  these  hints  or  direct  communications  of  what  has  been 
done,  is  a  knowledge  of  the  testimony  of  particular  witnesses  ; 
to  counteract  which,  the  party  accused  offers  odier  witnesses  for 
examination  ;  and  thus  the  institution  is  converted,  from  a  tribu- 
nal for  the  purposes  of  accusation,  into  a  jury  of  trials,  and  affords 
a  strong  temptation  for  subornation  of  perjury.^  Although  the 
grand  jury  are  instructed,  that  their  proceedings  are  always  in- 
tended to  be  ex  parte,  it  is  often  difficult  to  convince  them,  that 
when  their  oath  enjoins  them  "  diligently  to  inquire,"  it  is  not 
\\\fiw  duty  to  hear  all  the  evidence  that  is  offered  them.  The 
effect  is  often  equally  pernicious  in  another  way.  When  the 
party  finds  that  he  is  to  be  indicted,  it  is  very  common  for  him 
to  bring  forward  a  counter  prosecution  against  the  complainant, 
and  require  that  it  shall  be  examined  before  the  grand  jury  are 
dismissed.  It  often  requires  all  the  vigilance  and  authority  of 
the  public  prosecutor,  to  defeat  these  impositions  upon  the  justice 
of  the  public  ;  and  it  is  known  from  experience,  that  they  are 
often  the  consequence  of  the  careless  observance  of  the  oath  of 
secrecy,  in  some  member  of  the  inquest.  The  act  of  divulging 
the  secrets  of  a  grand  jury  would  not  be  so  unjustifiable,  if  it 
affected  the  personal  responsibility  of  him  only,  who  commits  it ; 
but  it  is  an  act,  which  not  only  betrays  his  own  secret,  but  is  an 
essential  injury  to  the  government,  and  to  the  w4iole  body  of  the 
inquest,  by  frustrating  the  most  important  objects  of  the  institu- 
tion. 

In  order  to  prevent  injuries  and  abuses  of  this  kind,  it  is  a 
principle  constantly  given  in  charge  to  the  grand  jury  by  the 
court,  that  this  obligation  of  secrecy  is  perpetual,  and  that  a 

'  4  Bl.  Com.  126,  Christian's  note  (5)  ;  1  Chitt.  317. 


14  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

grand  juror  cannot  be  absolved  from  it  at  any  period  of  his  life. 
Nolbiiip;  in  tlie  administration  of  public  justice  can  be  more  ra- 
tional or  salutary  than  this  principle.  A  violation  of  it  may  be 
the  means  of  producing  dangerous  and  violent  animosities  through 
life,  among  those  who  may  be  alFccled  or  injured  by  it. 

The  remaining  part  of  the  grand  juror's  oath  requires  no  par- 
ticular explanation.  It  simply  binds  him  to  a  faithful,  impartial, 
and  conscientious  discharge  of  his  duty.  "  You  shall  present  no 
man  for  envy,  hatred,  or  malice."  That  is,  you  shall  dismiss  all 
the  meaner  and  baser  passions,  when  you  assume  the  important 
and  sacred  obligations  of  deciding  upon  the  guilt  or  innocence 
of  a  fellow  being.  "  You  shall  leave  no  man  unpresented,  for 
love,  fear,  favor,  affection,  or  hope  of  reward."  That  is,  you 
shall  guard  yourself  against  all  deviations  from  duty,  to  which 
you  may  be  tempted  by  a  partiality  for  friends,  relations,  or 
associates  ;  and  above  and  more  than  all,  against  the  allurements 
of  a  base  reward. 

The  state  of  society  and  morals  in  this  country  seems  to  for- 
bid the  possibility  of  a  premeditated  and  wilful  violation  of  this 
oath.  Of  all  the  situations  involving  public  trust  and  confidence, 
that  of  a  grand  juror  seems  to  afford  the  weakest  temptation  to 
official  infidelity.  Yet  there  have  been  instances  within  the 
observation  of  those  who  have  had  the  means  of  knowing,  where 
the  frailly  of  human  nature  has  yielded  to  the  influence  of  private 
or  partial  motives  and  feelings.  But  these  instances,  perhaps, 
have  arisen  more  from  the  frailty  than  the  corruption  of  the  in- 
dividuals by  whom  they  may  have  been  indulged.  It  is  most 
generally  true,  that  when  a  man  is  called  to  give  an  opinion,  or 
decide  a  question,  which  nearly  interests  his  friends  and  con- 
nexions, his  mind  is  prejudiced  ;  and  if  he  errs,  he  may  be  for- 
given, upon  the  ground,  that  "  he  knows  not  what  he  does."  Cases 
to  which  these  remarks  apply,  are  not  unfrequent  or  unknown. 

The  time  of  service  of  the  grand  jury,  in  this  country,  is 
different  in  some  respects  from  what  it  is  in  England.  There 
they   usually  serve  the   whole  of  the  sessions,  or   assizes.^     But 


1  2  Hale,  156  ;  Williams  J.  1 ;  1  Chitt.  314. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  15 

the  court  may,  in  their  discretion,  order  another  grand  jury  to 
be  returned  and  sworn.  Tliis  is  practised  in  some  cases ; 
namely,  where,  before  the  end  of  ihe  sessions,  the  grand  jury 
have  brought  in  all  their  bills,  and  been  discharged,  and  after 
that  discharge,  a  new  offence  is  committed,  and  the  party  arrest- 
ed, and  in  gaol ;  or  when,  after  the  discharge  of  the  grand 
inquest,  a  new  offender  is  brought  in,  before  the  conclusion  of 
llie  sessions.^  The  odier  instance  of  a  new  grand  jury  being 
summoned,  is  provided  by  an  ancient  statute,  when  they  are  to 
inquire  of  any  concealment  by  a  former  inquest. 

No  instance  of  the  kind  first  above  mentioned  is  recollected 
in  our  practice,  excepting  in  the  county  of  Suffolk,  Massachu- 
setts, where  the  necessity  of  it  arises  from  the  concurrent  juris- 
diction of  the  Supreme  Judicial  and  Municipal  Courts  in  that 
county.  Our  practice  is  for  the  grand  jury,  when  tliey  have  com- 
pleted their  business,  to  return  into  court  and  deliver  in  their  bills ; 
and  if,  after  inquiry,  they  inform  the  court  that  they  have  no 
further  business  pending  before  them,  and  are  Uiereupon  uncon- 
ditionally discharged  from  any  further  attendance,  it  is  consider- 
ed that,  after  such  unconditional  discharge,  the  court  have  no 
power  to  resummon  them,  or  to  summon  a  new  grand  jury. 

This  power  of  a  conditional  discharge  of  the  grand  jury, 
though  not  generally  exercised  in  Massachusetts,  as  a  matter  of 
course,  may  still  be  considered  to  be  a  power  inherent  in  the 
court.  If  there  should  be  any  doubt  of  the  existence  of  such 
power,  it  ought  to  be  immediately  removed  by  legislative  pro- 
vision. It  not  unfrequently  happens,  that  capital,  and  other 
atrocious  offences,  are  committed  after  the  grand  jury  are  dis- 
charged, and  before  the  final  adjournment  of  the  court.  In  such 
a  case,  the  offender  must  sufFer  imprisonment  during  the  whole 
vacation,  before  he  can  be  tried,  unless  the  grand  jury  are  dis- 
missed with  a  reservation,  on  the  part  of  the  court,  to  recall 
them,  if  occasion  should  require,  before  the  end  of  the  session. 
In  England  this  conditional  discharge  never  takes  place  ;  but  in 
cases  where  an  ofTence  is  committed  after  the  discharge  of  the 

1  2  Hale,  156;    Williams  J.  1  ;  1  Chitt.  314. 


IG  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

grand  jury,  and  before   the   final  adjournment,  llie  court  have 
power,  by  tbe  Enslit^b  statutes,  to  summon  a  new  grand  jury. 

In  the  county  of  Suffolk,  the  same  grand  jury  wbicli  are  returned 
for  the  Supreme  Judicial  Court,  are  also  authorized  and  required 
to  perform  the  same  duties  in  the  iNlunicipal  Court,  in  all  cases 
within  the  jurisdiction  of  that  court.  The  practice,  therefore, 
necessarily  is,  thai  when  they  have  finished  their  business  in  the 
Supreme  Court,  in  dial  county,  they  arc  not  discharged  from  any 
further  attendance,  but  until  further  order  of  court,  and  there- 
upon are  informed,  that  if  occasion  should  require  it,  they  will  be 
notified  to  attend  a  second  lime. 

Fourthly.  The  right  to  challenge  grand  jurors,  and  of  in- 
structing them  as  to  the  principles  of  evidence. 

Every  indictment  must  be  found  by  twelve  men  at  least ; 

every  one  of  whom  must   possess  the  qualifications  required  by 

law,  and  be  selected  and  returned  in  the  manner  the  laws  of  the 

particular  state  in  which  he  is  to  serve  make  necessary.     If  a 

grand  juror  has  been  convicted  of  any  species  of  crimen  falsi,  as 

perjury,  conspiracy,  Sec.  which  may  render  him  infamous  ;  or 

is  an  alien  or  outlaw,  he  is  thereby  disqualified   from  serving  in 

that  capacity.     And  any  person  who  is  under  a  prosecution  for 

any  crime  whatever,  may,  by  common  law,  before  he  is  indicted, 

challenge  any  of  the  persons  returned  on  the  grand  jury,  for  any 

of  the  causes  above  mentioned.^     It  was  so  decided  in  Common- 

ivealth  vs.  Smith,  9  INIass.  R.  1 10  j^  in  which  it  is  said  by  Stivall 

J.  that  objections  to  the  personal  qualifications  of  grand  jurors,  or 

to  the  legality  of  the  returns,   may  be  received  from  any  person 

who  is  under  presentment  for  any  otTeuce  whatever,  or  from  any 

person  present,  who  may  make  the  suggestion  as  amicus  curia. 

In  a  subsequent  case,  however,  doubts  were  expressed  as  to  the 

correctness  of  that  opinion.^ 

In  the  case  of  the  United  States  vs.  Aaron  Bun,  a  motion 
was  made  by  the  prisoner  to  challenge  the  panel  of  the   grand 

1  Hawk.  b.  2,  c.  25,  §  16  ;  Bac.  Abr.  Juries  A.  ;  1  Chitt.  307,  and  other  au- 
thorities there  cited. 

-  See  ante,  p.  5^  and  Commonwealth  vs.  Parker  et  al.  2  Pick.  568. 

3  Ibid. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  17 

jury.  The  ground  of  llie  motion  was,  that  the  marshal  had 
proceeded  irregularly  in  summoning  some  part  of  the  panel. 
This  motion  was  considered,  both  by  the  counsel  and  the  court, 
as  new  and  without  precedent ;  but  it  was  so  far  sustained,  as 
that  the  juror,  who  was  irregularly  summoned,  was  considered  as 
not  being  one  of  the  panel.^  Chief  Justice  Marshall  remarked, 
that  "  there  can  be  no  doubt  that  this  is  the  time  when  the  ac- 
cused has  a  right  to  take  exceptions  to  the  jury  ;  and  the  only 
doubt  can  be,  is  this  a  proper  exception  ?  "  He  decided  that  it 
was.^ 

Grand  as  well  as  traverse  jurors  may  be  challenged  for  favor, 
as  well  by  the  government  as  the  prisoner.  And  it  is  said,  in 
the  case  of  United  States  vs.  Burr,  that  they  may  be  required 
to  declare,  whether  they  have  made  up  their  mind,  or  formed 
and  expressed  an  opinion  of  the  guilt  or  innocence  of  the  ac- 
cused.^ And  the  rule  is  laid  down  by  Chief  Justice  Marshall, 
in  the  case  of  United  States  vs.  Burr,  that  a  man  must  not  only 
have  formed,  but  declared  an  opinion,  in  order  to  exclude  hira 
from  serving  on  the  jury.'* 

The  right  of  the  court  to  instruct  the  grand  jury,  as  to  the 
principles  of  evidence,  on  incidental  points,  as  they  arise  on  an 
examination  of  cases,  when  requested  by  them,  is  well  establish" 
ed.  But  the  right  of  the  accused  person  to  move  the  court  to 
give  specific  instructions  to  the  grand  jury,  on  particular  points 
of  evidence  stated  in  a  particular  case,  has  never  been  admit- 
ted. It  would  be  manifestly  improper  for  the  court  to  commit 
themselves  upon  questions  of  law  pending  before  the  grand 
jury,  which  might  come  before  them,  to  be  decided  on  the  trial. 
Some  of  the  detailed  points  might  never  arise  during  the  session 
of  the  grand  jury  ;  and  any  instruction  on  them  would,  of  course, 
be  unnecessary.     Such  points  might  be   extreniely  difficult  to 


•  United  States  vs.  Burr,  Trial,  i.  33,  37. 

2    Ibid.  p.  37.  '•'  Ibid.  43,  425. 

♦  Bun's  Trial,  i.  44.  But  if  he  has  actually  formed  an  opinion,  though 
he  may  have  never  declared  it,  and  this  appears  from  the  answers  to  the 
questions  put  to  him,  it  ought  to  disqualify  him,  and  this  is  the  pracUce  in 
Massachusetts. 


18  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

decide,  nnd  would  require  an  argument  of  counsel.  "There  is 
no  judge  or  man,  who  would  not  often  find  the  solitary  medita- 
tions of  his  closet  very  much  assisted  by  the  discussions  of 
others."  ^ 

Fiftfihj.  The  mode  of  proceeding  after  the  grand  jury  are 
organized,  an<l  arc  ready  to  proceed  to  business. 

This  mode  varies,  in  some  respects,  in  the  different  States  ; 
and  from  the  practice  in  England.  In  the  latter  country,  the 
prosecutor  must  cause  his  bill  to  be  prepared  and  engrossed  on 
parchment,  before  it  is  preferred  to  the  grand  jury.  In  the  states 
of  New  York,  Massachusetts,  and,  probably,  in  most  of  the 
United  States,  the  bill  is  not  drawn  or  preferred  until  after  the 
examination  of  the  witnesses  by  the  grand  jury,  nor  until  after 
it  has  been  ordered.  This  is  undoubtedly  the  most  rational  and 
convenient  comse.  Indeed,  no  bill  can  be  correctly  or  safely 
drawn,  until  the  state  of  the  evidence,  upon  which  it  is  found 
and  is  to  be  supported,  has  been  minutely  examined,  and  is 
thoroughly  understood.  Guilty  persons  often  escape,  and  public 
prosecutions  are  often  defeated,  from  negligence  or  misinfor- 
mation as  to  the  minute  state  of  facts  in  the  cases  examined. 
This  fact  naturally  suggests  the  inquiry,  What  is  the  duty  of  the 
grand  jury,  and  of  the  public  prosecutor,  in  this  stage  of  a  public 
prosecution  ? 

There  is,  in  many  instances,  and  parts  of  the  country,  a  jeal- 
ousy on  the  part  of  the  public,  and  sometimes  between  the  grand 
jury  and  the  public  prosecutor,  which  ought  not  to  exist,  or  be  en- 
couraged. In  one  State  it  has  been  decided  by  the  Supreme 
Court,  that  it  is  not  the  right  of  the  public  prosecutor  to  remain 
In  the  grand  jury  room,  and  take  any  part  in  their  proceedings  ; 
and  whenever  he  does,  it  is  at  the  request  of  the  grand  jury. 
This  restriction  supposes  a  want  of  official  integrity  on  the  part 
of  the  public  prosecutor,  and,  perhaps,  of  impartiality  on  the  part 
of  the  grand  jury ;  for  nothing  that  experience  can  teach,  is 
more  certain  than  that  a  perfect  confidence  and  mutual  co-ope- 
ration between  the  public  prosecutor  and  the  grand  jury  are 

'  Chief  Justice  Marshall,  in  U.  S.  vs.  Burr,  Trial,  i.  174. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  10 

indispensable  to  the  despatch  and  successful  preparation  and 
management  of  a  criminal  prosecution.  In  some  countries, 
where  the  king's  allorncy  is  the  king's  tool,  this  jealousy  may 
be  excusable,  and  even  laudable ;  but  in  this,  the  presumption 
in  favor  of  ofllcial  integrity  and  duty  is  universal.  And  when 
the  nature  of  a  public  prosecution  is  such,  that  it  cannot  be  con- 
ducted to  a  proper  issue  without  a  confidential  and  free  inter- 
course between  those  to  whom  the  management  of  it  is  intrusted 
by  the  government,  the  absence  of  such  an  intercourse  will  be 
the  cause  of  constant  embarrassment  in  prosecutions  of  crimes, 
and  the  execution  of  the  laws.  It  is  true  that  no  person,  how- 
ever guiliy,  can  be  punished  without  being  first  accused  by  the 
grand  jury  ;  but  it  is  equally  true,  that  the  grand  jury,  from  their 
want  of  a  competent  knowledge  of  the  technical  niceties  which 
are  sanctioned  by  the  law  of  crimes,  would  be  constantly  com- 
mitting the  n»ost  fatal  errors  in  the  discharge  of  their  duty.  It 
may  be  considered  as  generally  true,  that  where  the  public 
prosecutor  is  excluded  from  a  minute  knowledge  of  the  facts  in 
a  case,  which  has  been  examined  before  the  grand  jury,  he  will 
find  himself  foiled,  at  almost  every  step,  in  the  management  of 
the  trial. 

The  duty  and  oath  of  a  grand  juror  presupposes  the  presence 
of  the  public  prosecutor  at  the  examination  of  witnesses,  and 
other  proceedings  before  the  grand  jury.  In  Massachusetts, 
authority  is  given  to  the  foreman  to  swear  witnesses ;  but  it  is 
given  upon  tlie  express  condition,  that  the  public  prosecutor  shall 
be  present  when  the  oath  is  administered. 

The  grand  juror's  oath  binds  him  to  keep  the  secrets  of  the 
commonwealth's  counsel.  What  secrets  or  what  counsel  can  the 
commonwealth  have,  which  a  grand  juror  is  bound  to  keep, 
unless  they  were  obtained  in  the  presence  of,  and  by  taking  a 
part  in  the  proceedings  of  the  grand  jury  ?  The  inquiry,  there- 
fore, becomes  extremely  important,  What  is  the  duty  and  what 
are  the  rights  of  a  public  prosecutor,  to  be  present  at  the  exam- 
ination of  witnesses,  and  take  a  part  in,  and  know  the  result  of 
such  examination  ? 


20  OFFICE  AND  DI'TV  OF  GRAND  Jt'RORS. 

It  is  not  contended  that  tlie  public  prosecutor  has  a  right  to 
remain  with  the  f^rand  jury  during  the  tinne  that  tlicy  are  dehb- 
erating  upon,  or  deciding  any  question  of  finding  a  bill,  unless  at 
their  request,  or  by  their  permission.  This,  however,  is  not 
unusual  in  England.^  But  for  the  piu'poscs  of  conducting  the 
examination  of  witnesses,  and  all  the  arrangements  preparatory 
thereto,  the  presence  and  aid  of  the  public  prosecutor  is  necessary 
and  indispensable  ;  and  the  following  course  upon  that  subject 
has  been  I'ound  productive  of  the  greatest  despatch,  and  liable  to 
no  legal  or  important  objections  ;  and  without  which,  the  whole 
term  of  the  court  would  often  be  insufficient  to  enable  the  grand 
jury  to  complete  their  business. 

Previous  to  the  session  of  the  court,  proper  measures  should 
be  taken  to  insure  the  punctual  return  of  all  summonses  and 
recognisances  of  witnesses.  When  their  names  are  ascertained 
and  noted  in  a  docket,  under  each  complaint  or  process,  they 
should  be  particularly  instructed  not  to  be  absent,  when  called  to 
attend  the  grand  jury.  For  this  and  other  purposes,  the  sheriff 
should  select  the  most  active  and  vigilant  of  his  officers  to  attend 
the  grand  jury.  When  the  witnesses  are  thus  collected,  and 
their  punctual  attendance  secured,  the  public  prosecutor  enters 
the  grand  jury  room,  and  gives  the  grand  jury  some  general  in- 
formation relative  to  the  state  of  the  gaol,  and  the  number  and 
nature  of  the  prosecutions  to  be  brought  before  them.  The 
order  in  which  the  cases  are  presented  for  examination  is  alto- 
gether a  matter  of  discretion  with  the  public  prosecutor.  He 
only  has  the  means  of  knowing  the  most  advisable  course  in  this 
particular.  If  there  are  any  capital  cases  pending,  they  ought  to 
be  the  first  that  are  submitted  to  the  examination  of  the  grand 
jury.  A  bill  for  each  capital  offence  ought  to  be  previously 
prepared,  and,  if  ultimately  found,  the  grand  jury  ought  to  be 
carried  into  court,  the  bill  delivered  and  filed,  and  the  prisoner 
arraigned,  before  the  grand  jury  proceed  to  any  other  business. 
This  course  is  rendered  necessary  by  the  important  preparations 
necessary  for  the  trial  of  all  prisoners  charged  with  a  capital 
offence. 

»  1  Chitt.  317. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  21 

The  grand  jury  then  proceed  upon  the  other  business  pending 
before  thein,  in  the  order  in  uliich  it  is  convenient  for  the  public 
prosecutor  to  introduce  it. 

All  the  witnesses,  in  the  particular  case  to  be  examined,  are 
then  sent  in  to  the  grand  jury,  and  ihe  oath  administered  to  them 
all  at  the  same  lime,  by  the  foreman  of  the  grand  jury,  in  the 
presence  of  the  public  prosecutor.  The  witnesses  then  retire, 
except  the  one  first  to  be  examined  ;  and  they  are,  in  all  cases, 
examined  separately,  and  in  the  absence  of  each  other.  After 
the  nature  of  the  case  is  shortly  explained,  the  attorney  for  the 
government  commences  the  examination  of  the  witness,  and  he 
is  examined  and  cross-examined  by  him,  until  he  has  obtained 
all  the  testimony  which  the  witness  can  give.  He  is  then  turned 
over  to  the  grand  jury  for  ihejr  examination,  and  the  foreman  is 
informed,  that  he  or  any  member  of  the  grand  jtny  can  examine 
him,  as  much  and  as  long  as  they  deem  expedient.  The  same 
course  is  pursued  with  all  the  other  witnesses  ;  and  at  the  close 
of  the  examination  the  question  is  submitted,  whether  there  shall 
be  a  bill  or  not. 

It  is  the  duty  of  the  public  prosecutor,  during  the  discussion 
of  this  question,  to  remain  perfectly  silent,  unless  his  advice  or 
opinion  in  a  matter  of  law  is  requested.  The  least  attempt  to 
influence  the  grand  jury  iti  their  decision,  upon  the  efTect  of  the 
evidence,  is  an  unjustifiable  interference,  and  no  fair  and  honora- 
ble officer  will  ever  be  guiliy  of  it.  It  is  very  common,  how- 
ever, for  some  one  of  the  grand  jury  to  request  the  opinion  of 
the  public  prosecutor,  as  to  the  propriety  of  finding  the  bill. 
But  it  his  duty  explicitly  to  decline  giving  it,  or  even  any  intima- 
tions upon  the  subject ;  but  in  all  cases  to  leave  the  grand  jury 
to  decide  independently  for  themselves.  It  may  be  thought  that 
this  is  too  great  a  degree  of  refinement  in  official  duly.  But  the 
experience  of  thirty  years  furnishes  an  answer  most  honorable 
to  the  intelligence  and  integrity  of  that  body  of  citizens  from 
which  the  grand  jury  are  selected  ;  and  that  is,  lliat  they  almost 
universally  decide  correctly.  This  is  the  natinal  effect  of  justice 
and  truth  upon  minds  left  uninfluenced  and  unembarrassed  by 
the  conflicting  opinions  or  arguments  of  others.     There  is  one 


22  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

case  in  which  it  is  proper,  and  certainly  the  duty  of  the  govern- 
ment's counsel  to  rescue  the  grand  jury  from  an  erroneous  de- 
cision ;  which  is,  when  ihcy  judge  correctly  upon  the  evidence, 
but  are  mistaken  in  the  application  of  it  to  points  and  principles 
ofhiw.*  Tliis  is  not  unfrequenlly  the  case;  but  a  single  hint 
from  an  officer,  respected  for  his  integrity  and  knowledge  of  the 
laws,  is  sufficient  to  correct  the  error.  But  in  all  cases,  where 
the  grand  jury  solicit  the  opinion  of  the  public  prosecutor  in 
matters  of  law,  it  is  his  duly  to  give  it,  and  to  afford  them  all  the 
light  and  information  of  which  he  is  capable  ;  and  this  privilege 
of  the  grand  jury,  and  duly  of  the  public  prosecutor,  are  usually 
stated  by  the  court,  in  their  charge  to  the  grand  jury. 

Whatever  may  be  the  jealousies  of  some,  upon  the  subject  of 
this  free  and  confidential  intercourse  between  the  government's 
counsel  and  the  grand  jury,  it  is  next  to  impossible  that  public 
prosecutions  can  be  conducted  with  despatch  and  correctness 
without  it.  However  intelligent  and  judicious  the  members  of  a 
grand  jury  may  be,  they  are  not  in  the  habit  of  exatnining  wit- 
nesses, and  preparing  evidence  to  be  used  in  public  trials  in 
courts  of  law.  If  they  were  left  without  official  aid  and  instruc- 
tion, there  are  many  counties  in  which  the  whole  term  would  be 
insufficient  to  enable  them  to  accomplish  the  business  of  the 
government.  The  impossibility  of  such  a  course  may  be  exem- 
plified, by  supposing  die  traverse  jury  to  be  left  to  conduct  the 
trials  brought  before  them,  without  the  assistance  of  counsel  or 
the  court. 

One  of  the  most  fatal  consequences  of  excluding  the  public 
prosecutor  from  the  examination  of  the  witnesses  before  the  grand 
jury,  and,  of  course,  from  the  knowledge  of  the  evidence  upon 
which  an  indictment  is  to  be  supported,  is,  that,  in  that  case,  the 
indictments  must  be  drawn  from  the  minutes  of  the  evidence, 
taken  by  the  grand  jury.  These  are  necessarily  insufficient  and 
incorrect  in  points  and  facts,  which  are  essential  to  the  validity  of 
an  indictment,  but  which  are  not  known  to  be  so  by  any  but 
those  who  are  skilled  in  technical  accuracy.  Prosecutions  have 
often  been  defeated,  and  the  guilty  escaped  unpunished,  from 
this  cause.     There  is  no  legal  course  to  be  pursued,  to  prevent 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  23 

this  evil.  It  may  be  said,  that  the  public  prosecutor  may  obtain 
this  information  by  a  private  examination  of  the  witnesses.  But 
he  has  no  means  or  legal  right  to  compel  their  attendance  before 
him  for  that  object ;  nor  has  he  any  authority  whatever  to  com- 
pel them  to  disclose  to  him  the  evidence  they  shall  give  on  the 
trial ;  and  thus  he  may  be  under  the  necessity  of  entering  upon 
an  important  public  trial,  wholly  unprepared,  and  liable  to  be 
defeated  at  every  step  he  advances. 

The  origin  of  this  objection  to  the  presence  of  the  govern- 
ment's attorney  during  the  examination  of  witnesses  before  the 
grand  jury,  may  be  traced  to  the  practice  and  usages  in  England. 
There,  except  in  cases  of  high  treason,  the  prosecutor  is  the 
individual  who  brings  forward  the  prosecution,  and  is,  in  fact, 
the  party  to  it,  although  it  is  instituted  and  proceeds  in  the  name 
of  the  king.  This  is  so  entirely  the  case,  that  the  prosecutor  is 
liable  for  the  costs  of  the  prosecution.  It  would,  therefore,  be 
improper,  generally,  to  admit  him  before  the  grand  jury,  and 
thereby  give  him  an  opportunity  to  influence  or  mislead  them  ; 
more  especially,  when  the  nature  and  design  of  the  institution  is, 
that  the  proceedings  shall  be  ex  parte,  that  is,  in  the  absence  of 
the  party  accused.  Yet  in  England  it  is  not  unusual,  excepting 
in  the  King's  Bench,  to  permit  the  prosecutor  to  be  present.  In 
this  country,  no  such  practice  or  state  of  things  exists.  The 
government  is  the  accuser,  and,  as  it  is  presumed  to  be  "  no 
respecter  of  persons,"  it  can  have  no  motive  or  interest  to  op- 
press its  citizens,  or  subject  them  to  any  inconvenience  or  in- 
jury, which  does  not  necessarily  arise  from  a  perfectly  im|)artial 
and  disinterested  mode  of  investigating  and  punishing  public 
offences. 

Sixthly.  The  nature  of  the  evidence  before  the  grand  jury; 
and  the  manner  in  which  it  is  to  be  received  and  decided  upon. 

The  grand  jury  hear  evidence  only  in  support  of  the  charge, 
and  not  in  exculpation  of  the  party  accused  ;  and,  in  general, 
they  ought  never  to  hear  any  other  evidence  than  that  which  is 
produced  by  the  government.^     But  as  they  are  sworn  to  pre- 

'  Hawk.  b.  2,  c.  25,  §  145,  in  notis  ;  1  Chitt.  318,  319. 


24  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

sent  the  truth,  as  it  comes  to  their  knowledge,  which  necessarily 
requires  investigation,  if,  in  the  course  of  such  investigation,  it 
appears  that  there  are  other  witnesses  than  those  produced  for 
the  presecution,  and  the  grand  jury  are  actually  convinced  that 
their  testimony  may  be  material  and  pertinent,  and  of  such  a 
nature  as  would  elucidate  or  explain  the  evidence  for  the  gov- 
ernment, and  lead  them  to  a  more  perfect  knowledge  of  the 
merits  of  the  case,  it  is  said  they  may  require  the  testimony  of 
such  witnesses.^  But  in  this  case,  great  judgment  and  extreme 
caution  ought  to  be  used,  to  guard  against  the  danger  of  hearing 
evidence  on  the  part  of  the  defendant,  and  thus  changing  the 
institution  of  a  grand  jury  to  that  of  a  traverse  jujy ;  by  which 
the  whole  merits  of  the  case  may  be  decided  in  a  private,  instead 
of  a  public,  tribunal.  The  grand  jury,  in  the  regular  discharge 
of  their  duty,  cannot  admit,  or  hear  any  testimony,  but  such  as 
is  properly  produced  to  them  in  support  of  the  prosecution  ;  if, 
however,  the  truth  is  not,  by  such  testimony,  sufficiently  demon- 
strated, it  is  said  they  may  properly  seek  other  information,  rela- 
tive to  mere  facts,  but  cannot  proceed  further.^ 

It  was  formerly  held,  that  the  grand  jury  ought  to  find  a  bill, 
if  prohahle  evidence  were  adduced  to  support  it,  because  it  is 
only  an  accusation  ;  and  the  prisoner  can  defend  himself  on  his 
trial.^  But  this  is  an  oppressive  and  dangerous  position  ;  and  has 
since  been  denied  and  almost  reprobated  by  the  greatest  sages  of 
the  law,  who  have  deprecated  the  ignominy,  dangers  of  perjury, 
the  anxiety  of  delay,  and  the  misery  of  a  prisoner,  that  might  be 
the  consequence  of  an  accusation  of  an  offence,  upon  evidence 
that  does  not  fully  satisfy  the  grand  jury  of  the  guilt  of  the  de- 
fendant.^ Accordingly,  it  has  now  become  a  setded  principle,  that 
the  grand  jury  cannot,  consistendy  with  their  oath,  find  a  bill, 
except  on  such  testimony  as  would  justify  them,  as  a  traverse 
jury,  to  find  the  prisoner  guilty.^     It  is  asserted   in  this  note, 

'  1  Chitt.  318,  cites  Dick.  Sess.  116,  and  other  authorities. 

*  1  Chitt.  318,  cites  Dick.  J.  Indictment,  4;  Burns  J.  Indictment,  5. 
3  2  Hale,  157  ;  1  Chitt.  313. 

*  1  Chitt.  318,  and  the  numerous  authorities  there  cited. 

*  Hawk.  b.  2,  c.  25,  §  145,  in  notis. 


OFFICE  AND  DUTY  OF  GRAND  JURORS. 


26 


quoted  in  Bacon,  that  it  is  the  doctrine  of  Lord  Hale,  confirmed 
by  Pemberton  C.  J.  in  the  trial  of  Lord  Shaftesbury,  (referred 
to  in  the  note,)  that  as  an  indictment  is  merely  an  accusation, 
and  the  party  is  afterwards  to  undergo  a  trial,  the  grand  jury 

ought,    UPON    PROBAULE    EVIDENCE    ONLY,  tO    find  Q    bill.        ThlS 

doctrine  is  wholly  inadmissible  in  any  government,  where  the 
protection  of  the  innocent  and  the  rights  of  the  accused  are  among 
the  first  objects  of  the  constitution  and  laivs.  The  reason  of  that 
principle  of  the  law  of  evidence,  that  if  a  jury  of  trials  entertain 
a  doubt  of  the  guilt  of  the  parly  accused,  they  ought  to  acquit 
him,  is  equally  applicable  to  a  grand  jury.^ 

With  respect  to  the  Icind  of  evidence  which  a  grand  jury  may 
receive,  they  are  bound  to  demand  the  best  legal  proof  of  which 
the  case  admits.  It  must  be  given  upon  oath  or  affirmation.^ 
If  the  grand  jury  receive  the  testimony  of  a  person  not  under 
oath,  the  indictment  will  be  quashed,  as  irregularly  found.^ 

The  grand  jury  oudit  not  to  find  a  bill  upon  the  testimony  of 
incompetent  witnesses,  such  as  have  been  convicted  of  infamous 
crimes.  And  where  the  fact  of  such  incompetency  is  known  to 
the  public  prosecutor,  he  ought  to  refuse  the  admission  of  the 
witness  to  the  grand  jury.-*  And  it  is  a  rule  widiout  an  excep- 
tion, that  no  evidence  can  be  admitted  or  received  by  the  grand 
jury,  which  would  not  be  admitted  on  the  trial  of  the  defendant  j 
such  as  hearsay  evidence,  affidavits,  depositions,  he. ;  the  nature 
of  criminal  prosecutions  requiring  that  the  witnesses  and  party 
shall  be  brought  face  to  face. 

An  accomplice,  not  otherwise  disqualified,  may  give  evidence 
before  the  grand  jury,  in  support  of  a  charge  against  his  associate 
in  guilt ;  and  he  may  be  brought  before  the  grand  jury  by  habeas 
corpus,  for  that  purpose,  if  he  be  in  prison.  If  the  prison  m 
which  he  is  confined  be  within  the  county,  when  and  where  the 
court  and  grand  jury  are  in  session,  he  may  be  brought  before 
the  grand  jury  to  testify,  by  a  simple  order  of  court.  And  die 
prosecutor,  or  complainant,  however  injured  by  the  crime  alleged 

'  1  McNally,  2-6.  '  Hawk.  b.  2,  c.  25,  §  138. 

3  2  Gall.  R.  364.  *  1  Chitt.  319. 


26  OrFICE   AND  1>LTY  OK   GRAND  JL'UOUS. 

to  liave  been  cominitled,  is,  in  general,  a  competent  witness, 
Jn  England,  and  in  some  of  tliu  United  States,  in  the  case  ot 
i'orgeiv,  tlie  party,  whom  the  I'orged  instrument  is  intended  lo 
deiVaud,  is  an  exception.^  If  the  jury  Imve  any  doubt  upon  the 
propriety  of  admitting  any  part  of  the  evidence  offered  them, 
they  may  ask  the  advice  of  the  court  upon  the  subject.^  And 
if  they  should  find  a  bill  upon  incompetent  or  improper  evidence, 
yet  if  the  prisoner  be  afterwards  tried  and  convicted  upon  legal 
and  siiflicicnt  testimony,  the  conviction  cannot  be  impeached.^ 

The  manner  in  which  evidence  is  received  and  decided  upon 
by  the  grand  jury,  is  required,  by  the  nature  of  the  institu- 
tion, to  be  private  and  in  secret.  The  oath  of  a  grand  juror 
requires  this  of  him,  and  tiie  disclosure  of  the  evidence  is  pun- 
ished as  a  misdemeanor,  with  fine,  and,  probably,  imprisonment. 
The  otFence  is  not  only  finable,  as  a  misprision,  but  may  be  con- 
sidered so  as  a  contempt.  If  these  proceedings  were  permitted 
to  be  public,  the  whole  object  of  the  institution  would  be  defeated. 
Yet  a  case  is  recorded  in  one  of  the  volumes  of  the  State  Trials 
in  England,  in  which  it  was  contended  and  decided,  that  the 
evidence  to  be  given  to  the  grand  jury  might  he  heard  in  court. 
I  refer  to  the  trial  of  the  Earl  of  Shaftesbury,  in  Hargrave's 
St.  Tri.  vol.  iii.  p.  420.  In  that  case,  after  the  charge  was 
given  to  the  grand  jury,  by  Lord  Chief  Justice  Pemberton,  the 
attorney-general  moved,  that  the  examination  of  the  witnesses, 
and  the  evidence  to  be  given  before  the  grand  jury,  should  be  in 
open  court.  This  motion  ivas  sustained,  and  the  reason  insisted 
on  by  the  lord  chief  justice,  and  upon  which  the  decision  was 
founded,  was,  that  such  had  been  the  universal  custom,  in  ancient 
and  later  times.  The  grand  jury,  in  the  above  trial,  repeatedly 
and  strenuously  objected  to  this  course  ;  alleging,  that  by  their 
oath  they  were  required  to  keep  the  king's  secrets ;  to  which 

1  Is  not  this  altered  by  the  late  statutes  i'oi  the  irupiovement  of  the  criminal 
code  in  England  ? 

2  1  Chitt.  320 ;  Hawk.  b.  2,  c.  25,  §  145,  in  notis  ;  4  Black.  Com.  303,  note 
1 ;  2  Hale,  159,  160. 

•'  Hawk.  b.  2,  c.  25,  §  145.  —  See  note  to  §  145,  Dr.  Dodd's  case  ;  {I 
Leach,  156,  157. 


OFFrCE  AND  DUTY  OF  GRAND  JURORS. 


27 


the  lord  chief  justice  replied,  "  The  oath  that  requires  that  '  the 
king's  counsel,  your  fellows',  and  your  own,  you  shall  keep  se- 
cret,' refers  to  yovr  dehnfrs,  and  not  to  the  evidence  given  to  the 
jury  !  "  There  is  nothin'j;  in  the  history  of  English  jurisprndence 
which  strikes  an  American  with  more  astonishment  and  abhor- 
rence than  this  procedure.  Without  having  taken  the  trouble 
to  examit\c  the  truth  of  the  assertion,  that  "  such  had  been  the 
univtMsal  custom,  in  ancient  and  later  times,"  it  is  to  be  hoped 
tJiat  the  custom  ceased  with  the  reign  of  Charles  ihe  Second, 
and  with  the  judges  of  his  creation.* 

It  is   said   to  be   the  right  and  duty  of  the  grand  jury,  that  if 

they   know  of  the   commission  of  any   offences,  to  inquire  into 

them,  and  have  them   punished,  although  not  presented  to  them. 

Seventhly.     The  right  of  the  grand  jury  to  compel  the  attend- 

tnce  of  witnesses  ;  the  finding  the  bill,  &ic. 

Most  witnesses  who  appear  to  testify  before  the  crand  jury,  are 
under  recognizance  for  that  purpose,  eidier  taken  by  a  magistrate 
or  in  the  judicial  courts.  And  all  witnesses,  whose  testimony  is 
material  to  the  finding  of  an  indictment,  are  compellable,  at  the 
order  of  the  grand  jury,  to  appear  before  them  and  give  their 
evidence.^  A  summons  issues  for  this  purpose,  by  the  procure- 
.nient  of  the  public  prosecutor,  from  the  clerk  of  the  court  at 
which  the  grand  jury  are  in  session.  Justices  of  the  peace, 
also,  in  Massachusetts,  are  expressly  authorized  by  statute  to 
•rant  subpcenas  for  witnesses,  in  criminal  causes,  pending  in  any 
court  having  criminal  jurisdiction,  provided  it  be  done  at  the 
request  of  the  public  prosecutor.^  And  in  all  cases,  where  wit- 
nesses are  lawfully  summoned  before  the  grand  jury,  and  refuse 
to  attend,  the  court  will  grant  an  attachment  against  them,  on 
which  they  may  be  taken  and  committed.  And  if,  when  a  wit- 
ness ap[)cars,  he  refuse  to  be  sworn,  or  testify,  the  court  may 
impose  an  immediate  fine  upon  him,  and  he  may  be  committed 


'  4  Black.  Com.  302,  note  by  Christian. 

»  1  Salk.  278  ;  Bac.  Abr.  Evidenrc,  D. ;  6  T.  R.  295 ;  8  T  R.  585 ;  1  Chitt. 
320. 

»  Stat.  \T^3,  c.  o\  ;  and  Stat.  17P1,  c.  .jt,  §  6. 


28  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

for  a  contempt ;  from  which  liability  no  privilege  can  excuse 
him.^ 

After  the  grand  jury  have  heard  the  evidence,  they  are  to 
decide  whether  the  bill  shall  be  found  or  rejected.  Twelve  of 
the  jury,  at  least,  must  concur  in  finding  the  bill  ;  and  if  the  rest 
of  the  jury  dissent,  the  finding  will  still  be  valid. ^  And  if  the 
foreman  does  not  concur  in  finding  die  bill,  he  must,  neverthe- 
less, sign  and  authenticate  it,  as  foreman,  provided  twelve  should 
agree  to  it  ;»for  it  is  not  the  foreman's  bill,  but  that  of  the  grand 
jury,  whose  organ  he  is  for  this  purpose. 

If  a  bill  be  ready  drawn  and  presented  to  a  grand  jury,  con- 
taining one  charge  only,  the  jury  cannot  find  one  part  of  it  true, 
and  another  false ;  but  they  must  either  reject  or  maintain  tiie 
whole  ;  and,  therefore,  if  they  endorse  a  bill  of  indictment  for 
murder,  a  true  bill  for  manslaughter,  and  not  for  murder,  the 
whole  will  be  invalid.  This  rule,  however,  does  not  extend  to  the 
finding  of  different  counts  ;  for  as  each  count  contains  a  distinct 
charge,  the  jury  may  find  a  true  bill  upon  one  of  them  only.^ 
It  is  a  rule,  however,  that,  in  cases  of  homicide,  it  is  generally 
most  safe  for  the  jury  to  return  a  bill  for  murder,  when  the  fact 
of  killing  is  proved.  On  such  an  indictment  the  prisoner  may 
be  found  guilty  of  manslaughter,  and  not  guilty  of  murder. 

The  distinctions  and  difficulties  above  stated,  may  be,  and  are 
avoided,  in  all  cases  where  the  indictment  is  not  drawn  and  pre- 
sented, until  after  the  grand  jury  have  heard  and  considered  all 
the  evidence,  and  have  decided  upon  the  offence  for  which  the 
bill  is  to  be  found.  In  such  case,  the  bill  is  always  drawn  con- 
formably to  the  evidence,  and  may  contain  as  many  counts  as 
the  nature  of  such  evidence  will  justify,  and  may  render  expedi- 
ent. Such  is  and  has  been  the  practice  in  Massachusetts  and 
other  States,  and  is  found  to  be  most  convenient,  and  strictly 
conformable  to  the  nature  of  criminal  proceeding.     The  practice 


1  1  Chitt.  321  ;  1  Hawk.  c.  22,  §  4  ;    1  Salk.  278  ;  Bac.  Abr.  Evidence,  D.  ; 
Dick.  Sess.  90. 

2  1  Chitt.  322  ;  2  Hale,  161  ;  4  Black.  Com.  306. 

3  Hawk,  b.  2,  c.  25,  §  2  ;  1   Chitt.   322-,  Cowp.  325,  and  other  authorities 
there  quoted. 


OFFICE  AND  DUTY  OF  GRAND  JURORS. 


29 


of  drawing  and  preferring  the  bill  before  the  evidence  is  exam- 
ined by  the  grand  jury,  obtains  in  England,  and  those  American 
States  where  the  English  practice  in  this  particular  is  adopted, 
and  where  the  party  injured  is,  in  fact,  though  not  in  name,  the 
prosecutor. 

If  the  indictment  found  is  defective,  a  new  and  more  regular 
one  may  be  framed  and  found.  The  mere  insufficiency  ot  the 
finding,  affords  no  future  indemnity  to  the  party  indicted.^ 

Eighthly.  Amendment  of  indictments,  by  consent  of  the 
grand  jury. 

It  is  setded,  in  England,  both  by  express  exceptions  in  the 
Statutes  of  Amendments,  and  the  current  of  authorities,  that 
indictments  are  not  within  their  operation  ;  and  that,  therefore, 
they  stand  upon  the  same  principles  with  respect  to  amendment, 
as  those  to  which  all  pleadings  were  subject  at  common  law. 
As  the  indictment  is  the  finding  of  a  jury  upon  oad),  it  cannot  be 
amended  by  the  court  without  the  concurrence  of  the  grand  in- 
quest, by  whom  it  is  presented.^  And  it  is  the  common  prac- 
tice in  England,  for  the  grand  jury  to  consent  that  the  court 
shall  amend  matters  of  form,  altering  no  matter  of  substance  ; 
mere  formalities  may,  therefore,  be  amended  by  the  court,  before 
the  commencement  of  the  trial.''  The  time  at  which  the  grand 
jury  are  called  upon  to  consent  to  the  amendment  of  their  indict- 
ments, is  differently  stated  in  different  authors.  In  a  note  in 
Hawkins,  and  in  Chitty  it  is  said,  that  this  consent  is  obtained  at 
the  time  the  grand  jury  are  sworn.  In  the  text  of  Hawkins  it  is 
stated,  that  this  amendment  is  consented  to  by  the  grand  jury 
when  they  are  before  the  court.^  But  in  the  Cro.  C.  C.  12, 
(6th  Ed.)  it  is  thus  laid  down  :  "  The  court  sends  for  the  grand 
jury  ;  and  when  they  appear,  the  clerk  calls  them  severally  by 
their  names,  and  says,  '  Gentlemen,  have  you  agreed  upon  any 

»  4  Black.  Com.  305,  306  ;  Bac.  Abr.  Indictment,  D. ;  FosU  104.  106. 
«  1  Chitt.  297,  quotes  4  Burr.  2569,  2370  ;  1  Hale,  193  ;  Hawk.  b.  2,  c.  25, 
§  97  ;  Bac.  Abr.  Indictment,  G.  11,  and  other  authorities. 

3  1  Chitt.  297  ;  4  Burr.  2570  ;  Hawk.  b.  2,  c.  25,  §  98  -,  6  Mod.  281. 

*  1  Chitt.  297,  298 ;  Hawk.  b.  2,  c.  25,  §  98  ;  Bac.  Abr.  Indictment,  H.  U. 

»  1  Chitt. 


30  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

bills  ^^  And  the  clerk  bids  them  present  them  to  the  court ; 
and  upon  delivery  of  them,  he  saith,  '  You  are  content  the  court 
shall  amend  matter  of  form,  altering  no  matter  of  substance, 
without  ijour  jirivity,  in  these  bills  you  have  found  9  ^  The 
grand  jury  say,  Yes.  The  court  then  proceed  to  arraign  the 
prisoners." 

There  seems  to  be  no  doubt,  therefore,  that  an  indictment, 
as  well  in  capital  cases  as  misdemeanors,  may  be  amended  by 
order  of  court,  in  matters  of  form,  by  the  consent  of  the  grand 
jury  ;  and  that  the  princi|)les  and  practice  of  die  common  law 
have  sanctioned  this  procedure.^ 

It  is  laid  down  in  Starkie,  245,  that  it  is  the  common 
practice,  at  present,  to  amend  indictments  in  matters  of  form, 
whilst  the  grand  jury  are  before  the  court;  for  which  purpose 
they  formally  give  their  consent  Uiat  the  court  shall  amend  mat- 
ters of  form,  altering  no  matter  of  substance.  When  an  indict- 
ment appeared  to  be  insufficient,  either  for  its  uncertainty,  or  for 
want  of  proper  legal  words,  it  was  anciently  the  practice  to  award 
process  to  the  grand  jury,  if  the  court  sat  in  the  same  county,  to 
amend  it.^  It  is  presumed  not  to  be  competent  to  the  courts  in 
this  country  to  adopt  this  latter  course.  When  the  grand  jury 
have  finished  their  business,  and  been  unconditionally  discharg- 
ed, they  cannot  be  resummoned  and  reorganized.  No  grand 
jury  can  be  created  or  brought  into  existence,  but  in  the  man- 
ner directed  by  the  statutes  of  the  State. 

There  appears  to  be  no  objection  to  the  introduction  of  the 
practice  of  amending  indictments,  in  mere  matters  of  form, 
by  die  consent  of  the  grand  jury,  into  the  courts  of  this  coun- 
try. On  the  contrary,  it  would  be  the  means  of  preventing 
the  escape  of  atrocious  offenders,  from  the  most  trifling  de- 
fects, not  at  all  affecting  their  rights,  and  which  operate  to  the 
manifest  injury  of  public  justice.  This  evil,  according  to  our 
present  practice,  is  without  remedy.  The  grand  jury  are  usually 
discharged  at  the  moment  they  have  finished  their  business,  and 
delivered  dieir  bills  into  court,  and  before  the  prisoners  are  ar- 

1  I  Chitt.  298.  «  Stark.  245  ;  2  Hawk.  c.  25,  §  98. 


OFFICE  AND  DUTY  OF  GRAND  JURORS.  31 

raijj;necl.  They,  of  course,  immediately  leave  the  court,  and 
return  to  their  homes.  If,  after  this,  the  most  tritling  mistake  in 
the  indictment  is  discovered,  on  the  arraignment  of  the  piir-^oner, 
there  is  no  way  to  correct  or  amend  it,  hut  by  the  consent  of  the 
party  accused  ;  this  can  rarely  be  expected.  This  evil,  trifling 
as  is  the  cause  of  it,  and  injurious  as  are  the  consequences  of  it, 
can  never  be  avoided,  so  long  as  the  public  prosecutors  are  sub- 
ject, in  common  with  the  rest  of  mankind,  to  human  frailty. 
The  remedy^  ^bweVet,' !l  perfectly  simple,  and  fully  vested  in  the 
judicial  courts,  by  the  provisions  and  principles  of  the  common  law. 
And  it  is  known  to  the  author  of  these  remarks,  that  some  of  the 
most  eminent  judges  in  the  country  have  been,  and  now  are,  de- 
cidcdlv  of  opinion,  that  the  English  practice  before  referred  to,  in 
regard  to  amendments  of  matters  of  form  in  indictments,  by  the 
consent  of  the  grand  jury,  ought  to  be  adopted  in  the  American 
courts.  If  it  were,  it  might,  in  an  important  instance,  do  away  the 
reproach  which  often  follows  the  acquittal  of  a  criminal,  whose 
guilt  is  not  only  apparent,  but  admitted,  by  reason  of  trifling 
errors  and  omissions,  to  which  tlie  most  accurate  are  liable  and  in 
the  habit  of  innocently  con)miiting.  The  technical  strictness  of 
criminal  proceeding  may  doubtless  be  relaxed,  so  as  to  insure 
the  punishment  of  the  guilty,  and  without  depriving  the  accused 
of  any  just  means  of  defence. 

Among  the  late  improvements  in  the  criminal  lavv  of  England, 
is  the  statute  of  7  Geo.  4,  c.  G4,  §  19,  by  which  it  is  provided, 
that  no  indictment  shall  be  abated  by  reason  ol  any  dilatory  plea 
of  misnomer,  or  want  of  addition,  or  of  a  wrong  addition ;  but 
the  court  may  amend  the  same,  and  require  the  party  to  plead. 
And  by  section  20,  of  the  same  statute,  no  indictment  or  infor- 
mation shall  be  stayed  or  reversed,  for  omitting  to  state  the  time 
at  which  the  offence  was  committed,  in  any  case  where  time  is 
not  the  essence  of  the  offence  ;  nor  for  stating  time  imperfectly  ; 
nor  for  stating  the  offence  to  have  been  committed  on  a  day  sub- 
sequent to  the  finding  of  the  indictment ;  or  on  an  impossible 
day ;  or  on  a  day  that  never  happened. 

These  rational  and  liberal  improvements  would  be  adopted  in 
all  the  States  of  this  Union,  if  the  mischiefs,  escapes  of  the  guilty 


32  OFFICE  AND  DUTY  OF  GRAND  JURORS. 

from  punishment,  and,  in  many  instances,  the  indignation,  which 
are  the  result  of  this  technical  strictness  in  criminal  prosecutions, 
were  fully  known  and  understood. 

Since  the  above  paragraph  was  written,  the  legislature  of 
Massachusetts,  by  a  statute  of  1830,  c.  49,  have  passed  "  An 
Act  for  the  Prosecution  and  Punishment  of  Accessories  in  Felo- 
nies," in  which  the  late  iuiprovements  in  the  British  government 
upon  that  subject  have  been  adopted.  JL.  S» .  c-.  /38. 


PRECEDENTS  OF  INDICTMENTS. 


ABORTION. 


1.  At  Common  Law ;  for  administering  a  Potion,  wiih  Intent 
to  cause  an  Abortion} 

Comrnornvealth  of  Massachusetts. 

Suffolk  ss.~  At  the  Supreme  Judicial  Court  of  the  said  Com- 
monwealth of  Massachusetts,  begun  and  holden  at  Boston, 
within  and  for  the  said  county  of  SufFolk,  on  the  Tues- 

day of  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  thirty  : 

The  jurors  for  said  CommonwcaUh  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  thirty,  at  Boston  aforesaid,  in  the  county  aforesaid,^ 
did,  unlawfully  and  wickedly,  administer  to,  and  cause  to  be 
administered  to  and  taken  by  one  C.  D.,  single  woman,  she  the 
said  C.  D.  being  then  and  diere  pregnant,  and  quick  with  child,'' 
divers  quantities,  to  wit,  four  ounces,  of  a  certain  noxious,  per- 
nicious, and  destructive  substance,  called  savin;  with  intent 
thereby  to  cause  and  procure  the  niiscarriagc  of  tjic^said  C.  D., 
and  the  premature  birth  of  the  'sa*d  'child)  of  whicfi  the  said 
C.  D.  was  then  and  there  pregnant  and  quick  ;  by  the  means 
whereof,  the  abortion,  miscarriage,  and  premature  birth  of  the 
said  child  was  caused  and  produced.  And  she  the  said  C.  D., 
afterwards,  to  wit,  on  the  day  of  next  following,  at 


»  3  Chitt.  C.  L.  797-SOO. 

*  The  name  of  the  county  must  be  in  the  margin  or  repeated  in  the  body  of 
the  caption.     2  Hale,  166. 

3  The  words  "  force  and  arms  "  arc  omitted  in  this,  and  may  be  in  the  follow- 
ing precedents,  as  unnecessary.  Sec  for  this,  the  following  authorities.  2 
Hawk.  c.  25,  §  90;  2  Hale,  187,  and  the  autboiities  there  quoted. 

*  Or,  according  to  some  authorities, "  being  then  and  there  pregnant  with  a 
quick  child." 

5 


3#  ABORTION. 

B.  aforesaid,  in  the  county  aforesaid,  by  means  of  the  noxious, 
pernicious,  and  destructive  substance  aforesaid,  so  as  aforesaid 
administered  by  the  said  A.  B.,  and  taken  by  tlie  said  C.  D., 
was  prematurely  delivered  of  the  said  ciiild,  against  the  peace 
and  dignity^  of  the  Commonwealth  aforesaid. 

2.  For  causing  an  Abortion  by  an  Instrument.^ 

[^Draiv  the  caption  as  in  precedent  JVo.  1.] 

That  A.   B.  of  in  the  county  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred   and  at    B.   aforesaid,  in   tlie  county  of 

aforesaid,  did,  unlawfully,  knowingly,  and  inhumanly,  force  and 
thrust  a  certain  instrument,  called  a  which  the  said  A.  B. 

in  his  right  hand  then  and  there  had  and  held,  up  and  into  the 
womb  and  body  of  one  C.  D.  ;  she  the  said  C.  1).  being  then 
and  there  pregnant,  and  quick  with  child  ;  with  a  wicked  and 
unlawful  intent  to  cause  and  procure  the  said  C.  D.  to  miscarry, 
and  to  bring  forth  the  said  child,  of  which  she  was  then  and 
there   j)regnant  and  quick   as   aforesaid  ;    and  that  she   the  said 

C.  D.  afterwards,  to  wit,  on  the  day  of  then  next 
ensuing,  at  B.  aforesaid,  in  the  county  of  S.  aforesaid,  by  means 
of  the  forcing  and  thrusting  of  said  instrument  into  the  womb  and 
body  of  her  the  said  C.  D.,  in  manner  aforesaid,  did  bring  forth 
the  said  child,  (of  which  she  was  so  pregnant  and  quick,)  dead  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid.'' 


*  The  word  "  dignity,"  at  the  close  of  the  precedent,  may  also  be  omitted 
as  unnecessary.  For  this  see  Hawk.  b.  2,  c.  25,  §  94  ;  2  Hale,  188,  and  other 
authorities  there  referred  to.  But  in  the  following  precedents  it  is  generally 
retained.   V.  "K.  S.  e..  H/^  -  Z^. 

«  3  Chitt.  800. 

'  Commonioealth  vs.  Bangs,  9  Mass.  R.  387.  In  this  case  it  was  decided, 
that  the  indictment  must  contain  an  allegation  that  an  abortion  ensued,  and 
that  the  woman  was  quick  with  child.  There  is  no  authority  referred  to  in  the 
case,  for  the  above  opinion.  And  see  3  Chitt.  799, 800,  where  there  is  a  precedent 
for  procuring  abortion,  by  means  both  of  administering  noxious  medicines,  and  of 
an  instrument ;  in  the  three  last  counts  of  which  there  is  no  averment  that  the 
woman  was  quick  with  child. 


ABORTION. 


35 


3.  For  administering  noxious  Potions,  Sfc.  ivith  Intent  to  procure 
an  Abortion} 

\I)raw  the  caption  as  in  precedent  JVo.  1.] 

The  jurors  for  said  Coininonwcaltli  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  tlie 

day  of  in  the  year  of  our  Lord,  &:c.  with  force  and  arms, 

at  aforesaid,   in  the  county   aforesaid,   in  and   upon  one 

C.  D.,  in  the  peace  of  said  Commonwealth  then  and  'there 
being,  did  make  an  assault,  she  the  said  C.  D.  being  then  and 
there  big,  pregnant,  and  (juick  with  chiki  ;  and  that  he  the  said 
A.  B.  then  and  there  knowingly,  unlawfully,  wilfully,  wickedly, 
maliciously,  and  injuriously,  did  give  and  administer,  and  did 
cause  and  procure  to  be  given  and  administered  to  the  said 
C.  D.,  so  being  big,  and  pregnant,  and  quick  with  child  as  afore- 
said, divers  deadly,  dangerous,  and  pernicious  drugs,  potions, 
and  mixtures,  with  a  wicked  and  unlawful  intent  to  cause  and 
procure  the  said  C.  D.  to  miscarry,  and  to  bring  forth  the  said 
child,  with  which  she  was  then  and  there  pregnant  and  quick  as 
aforesaid,  dead ;  by  reason  and  means  whereof  the  said  C.  D. 
became  and  was  rendered  weak,  sick,  and  distempered  in  her 
body,  for  the  space  of  six  months  ;  and  the  life  of  the  said 
C.  D.  thereby  greatly  endangered  ;  and  other  wrongs  then  and 
there  did,  to  the  great  damage  of  her  the  said  C.  D.,  and  against 
the  peace  of  the  Commonwealth  aforesaid. 


'  This  precedent  is  selected  from  3  Chitt.  C.  L.  800.  It  is  drawn  at  common 
law,  and  contains  the  allcgalion  of  an  assault.  It  is  not  alleged  that  C.  D.  was 
quick  with  child,  nor  that  the  abortion  was  produced  ;  neither  is  the  name  of 
the  medicine  given.  It  may  be  advisable  in  all  cases,  when  the  name  of  the 
medicine  or  drug  is  unknown,  to  allege  in  the  indictment  that  it  was  a  certain 
dangerous  &c.  drug,  potion,  &c.  "  the  name  of  which  is  to  the  jurors  aforesaid 
unknown."  But  see  3  Chitt.  798,  note  (u),  where  it  is  said  the  name  of  the 
poison  is  not  material  ;  cites  3  Campb.  75. 

There  are  several  other  precedents  in  Chitt.  C.  L.  and  in  Archibald  Cr.  PL, 
drawn  upon  the  late  Enghsh  statute  of  43  Geo.  3,  c.  58.  But  the  statute  is 
now  repealed,  by  the  recent  statute  of  9  Geo.  4,  c.  31,  intitled  an  act  for  "  con- 
solidating and  amending  the  statutes  of  England,  relative  to  offences  against  the 
person  ;  "  in  which  a  new  provision  upon  the  subject  of  this  offence  is  intro- 
duced. 


36  ACCESSORY. LARCENY. 


4.    For  administering  a  Decoction  of  Savin,   to  procure   an 
Abortion  in  a  Woman,  before  the  Cluickening.^ 

That  A.  B.  of  &c.  on  and  on  divers  other  days  and 

times,  between  that  day  and  the  day  of  taking  this  inquisition, 
at  he,  wilfully,  maliciously,  and  unlawfully,  did  administer,  and 
cause  to  be  administered  to,  and  taken  by  one  C.  D.,  single 
woman,  divers  quantities,  to  wit,  six  ounces,  of  the  decoction  of 
a  certain  noxious  and  destructive  shrub,  called  savin  ;  the  said 
C.  D.,  on   the   said  day  of,  kc.   and  continually  from 

thence,  until  the  day  of  at  aforesaid,  being 

with  child,  but  not  quick  with  child,  at  the  respective  times  of 
administering  the  decoction  of  the  said  shrub  called  savin,  as 
aforesaid  ;  with  intent  thereby  to  cause  and  procure  the  mis^ 
carriage  of  tlie  said  C.  D. ;  against  the  peace  &c. 


ACCESSORY.     Larceny, 

5.  Indictment  against  an  Accessory  to  a  Larceny  before  the  Fact? 

[  Caption  as  in  precedent  JVo.  1 .  Then  proceed.']  Tlie  jurors 
for  said  Commonwealth  of  Massachusetts  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  Boston,  in  the  said  county  of  Suffolk,  one 

silver  spoon,  of  the  value  of  one  dollar,  of  the  goods  and  chattels 
of  one  C.  D.,  then  and  there  in  the  possession  of  the  said  C.  D. 
being  found,  feloniously  did  steal,  take,  and  carry  away,  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.  late  of  in  the  county  of  laborer, 

before  the  committing  of  the  felony  and  larceny  aforesaid,  to  wit, 

^  This  precedent  is  taken  from  3  Chitt.  798,  and  is  drawn  upon  the  statute  of 
43  Geo.  3,  c.  58,  §  2.  But  it  is  inserted  here  upon  the  presumption  that  the  facts 
therein  stated  would  amount  to  a  misdemeanour  at  common  law. 

2  The  following  precedents  against  accessroies  are  selected  from  Tremaine's 
Pleas  of  the  Crown  ;  Chitt.  Cr.  Law ;  Cr.  Cir.  Comp. ;  and  Starkie  Cr.  PI. 
The  superfluous  matter  and  obsolete  words,  in  these  and  most  of  the  other 
precedents  of  indictments  in  the  ancient  English  forms,  are  not  adopted. 


ACCESSORY. — LARCENY.  37 

on  the  day  of  in  the  year  last  aforesaid,  at 

aforesaid,  in  the  county  aforesaid,  did  knowingly  and  feloniously 
incite,  move,  procure,  aid,  abet,  counsel,  hire,  and  command  the 
said  A.  B.  to  do  and  commit  the  said  falony  and  larceny,  in 
manner  and  form  aforesaid,  against  the  peace  and  dignity  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided.^ 

6.  Against  an  Accessory,  for  receiving  the  principal  Felon. 

{State  the  offence  against  the  principal  felon,  as  in  the  next 
preceding  precedent,  and  then  proceed  as  follows.] 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  C.  D.  of  in  the  county  of  laborer, 

well  knowing  the  said  A.  B.  to  have  done  and  committed  the 
felony  and  larceny  aforesaid,  in  manner  and  form  aforesaid, 
afterwards,  to  wit,  on  the  day  of  in  the  year  of  our 

Lord  one  thousand  eiiiht  hundred  and  at  B.  aforesaid,  in 

the  county  aforesaid,  "him  the  said  A.  B.  did  then  and  there 
knowingly  and  feloniously  receive,  harbour,  conceal,  and  maintain, 
in  the  larceny  and  felony  aforesaid  ;  against  tlie  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided." 

7.  Against  an  Accessory,  for  receiving  Stolen  Goods. 

[State  the  offence  against  the  principal  felon,  as  in  precedent 
JVo.  4,  and  then  proceed  as  follows.] 

And  the  jurors  aforesaid,'upon  their  oath  aforesaid,  do  further 
present,  that  C.  D.  of  in  the  county  of  laborer, 

afterwards,  to  wit,  on  the  day  of  now  last  past,  at 

B.  aforesaid,  in  the  county  aforesaid,  the  goods  and  chattels 
aforesaid,  to  wit,  one  gold  ring,  of  the  value  of  two  dollars  [here 
state  all  the  articles  found  upon  the  accessory,  their  value,  .^c] 
so  as  aforesaid  feloniously  stolen,  taken,  and  carried  away,  by 
the  said  A.  B.  in  manner  aforesaid,  feloniously  did  receive  and 


1  2  Stark.  Cr.  PI.  456;  Cro.  C.  C.  124.  This  indictment  concludes  at  com- 
mon law. 

The  words  in  tlie  statute  of  Massachusetts  of  1804,  c.  143,  used  in  the  cases 
of  accessory  before  the  fact,  are,  "  any  person  who  shall  he  accessory  thereto 
before  the  fact,  by  counselling,  hiring,  or  otherwise  procuring  the  same  to  be 
done."  These  words  are  used  in  most  of  the  statutes  of  Massachusetts  against 
capital  offences,  as  against  accessories  before  the  fact. 

«  2  Stark.  Cr.  PI.  456 ;  Mass.  Laws.  Stat.  1804,  c.  143,  §  10 ;  Cro.  C.  C. 
125 (6th  Ed.) ;  2  Chitt.  C.  L.  6.  J^,  S .  c  /2.6.  6,.  n.  ^.  ni.-^- '• 


38  ACCESSORY. LARCENY. 

have,  and  did  then  and  there  feloniously  aid  in  concealing  the 
same  ;  he  the  said  C.  D.  then  and  there  well  knowing  the  same 
goods  and  chattels  to  have  heen  feloniously  stolen,  taken,  and 
carried  away  as  aforesaid  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided.^ 

Note. — When  the  principal  has  been  convicted  in  one  county, 
and  the  stolen  goods  received  in  another,  the  form  will  be  die 
same  as  in  this  precedent ;  the  conviction  of  the  principal  being 
alleged  conformably  to  the  record  in  the  county  where  it  was 
had. 

8.  Indictment  for  a  Misdemeanor,  against  an  Accessory,  for  re- 
ceiving stolen  Goods,  the  Principal  not  having  been  prosecuted. 

The  jurors  for  said  Commonwealth  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred  and  at  B.   aforesaid,  in  the  county  aforesaid,  one 

silver  tankard,  of  the  value  of  twenty  dollars,  of  the  goods  and 
chattels  of  one  C.  D.,  by  one  E.  F.~  then  lately  before  feloni- 
ously stolen  of  the  said  C.  D.,  unlawfully,  unjustly,  and  for  the 
sake  of  unlawful  and  wicked  gain,  did  receive  and  have ;  the 
said  A.  B.  then  and  there  well  knowing  the  same  to  have  been 
feloniously  stolen  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided.^ 

9.  Against  an  Accessory  for  a  Misdemeanor,  in  receiving  stolen 

Goods,  the  principal  Felon  being  unknown. 

The  jurors  for  said  Commonwealth  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,   at  aforesaid  in  the   county 

aforesaid,  one  silver  tankard,  of  the  value  of  twenty  dollars,  of 
the  goods  and  chattels  of  one  C.  D.,  by  an  evil  disposed  person, 
to  the  jurors  aforesaid  yet  unknown,  then  lately  before  feloniously 
stolen  of  the  said  C.  D.,  unlawfully,  unjustly,  and  for  the  sake 
of  wicked  and  unlawful  gain,  did  receiv^e  and  have  ;  he  the  said 
A.  B.  then  and  there  well  knowing  the  said  goods  and  chattels 

1  2  Strak.  Cr.  PI.  457 ;  Mass.  Laws,  Stat.  1804,  c.  143,  §  10  ;  Cr.  Cir. 
Comp.  125.  £-.»^.  ^d^. 

^  The  name  of  the  principal  ought  to  be  stated,  if  known.  East,  P.  C. 
783. 

'  2  Mass.-Laws.  Stat.  1804,  c.  143,  s,  U.     See  next  precedent,  X.  5.^.  /T-6 


ACCESSORY. ROBBEM.  oy 

to  have  been  feloniously  stolen  ;  against  the  peace  of  said  Com- 
monweallli,  and  contrary  to  the  form  of  ihe  statute  in  such  case 
made  and  provided. 

10.  Against  an  Accessory,  for  a  second  Offence  in  receiving  stolen 
Goods,  the  principal  Felon  being  unknown} 
The   jurors  for  said  Commonwealth  upon  their  oath  present, 
that  A.  B.  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  at  aforesaid,  in  the  county 

aforesaid,  one  silver  tankard  of  the  value  of  twenty  dollars,  of 
the  goods  and  chattels  of  one  C.  D.,  by  a  certain  evil  disposed 
person  to  the  jurors  aforesaid  unknown,  then  lately  before  felo- 
niously stolen  o"f  him  the  said  C.  D.,  unlawfully,  unjustly,  and  for 
the  sake  of  unlawful  and  wicked  gain,  did  receive  and  have  ;  he 
the  said  A.  B.  then  and  there  well  knowing  the  said  goods  and 
chattels  to  have  been  feloniously  stolen  as  aforesaid  ;  against  the 
peace   of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.     And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do   furdicr  present,  that  hereto- 
fore, to  wit,  at  the  Supreme  Judicial  Court  of  said  Common- 
wealth, begun  and  holden  at  within  and  for  the  county  of 
on^he             Tuesday  of  in  the  year  of  our  I^rd 
one  thousand  eight  hundred  and  the  said  A.  B.  was  duly 
and  legally  charged  and  convicted,  for  that  he  the  said  A.  B. 
on             at             seventeen  yards  of  linen  cloth,  of  the  value  of 
five  dollars,  of  the  goods  and  chattels  of  one  E.  F.,  by  a  certain 
ill  disposed  person  to  the  jurors  who  found  the  bill  of  indictment 
upon  which  the  said  A.  B.  was  then  and  there  convicted  as 
aforesaid,  then  unknown,  then  lately  before  feloniously  stolen  of 
him  the  said  E.  F.,   unlawfully,  unjustly,  and  for  the   sake  of 
wicked  and  unlawful  gain,  did  have  and  receive,  he  the  said 
A.  B.  then  and  there  well  knowing  the  said  seventeen  yards  of 
linen  cloth  to  have  been  feloniously  stolen  as  aforesaid  ;  agamst 
the  peace  of  said  Commonwealth,  and  contrary  to  the   form  of 
the  statute  in  such  case  made  and  provided. 

11.  Accessory  before  the  Fact,  to  a  Robbery. 
\Frnme  the  indictment  against  ihe  principal,  according  to  the 
facts  Sn  ^ihe  case,  ajifl  the  form  of  indictment  against  the  prin- 
cipal in  Robbery ;  and  then  proceed.']     And  the  jurors  aforesaid, . 
upon  their  oath  aforesaid,  do  further  present,  that  A.  B.  of,  &.c. 

•  2  Ma:j3.  Laws,  Stat.  1S04,  c.  143,  §  12.  »-*  •  «^-  /t^-^'  *^- 


40  A^ESSORY.— MURDER. 

before  the  said  felony  and  robbery  was  committed  in  manner 
and  form  aforesaid,  to  wit,  on  the  day  of  in  the 

year  aforesaid,  at  aforesaid,  in  the  county  of  afore- 

said, wilfully  and  feloniously  did  counsel,  hire,  and  procure  the 
said  A.  B.  the  felony  and  robbery  aforesaid,  in  manner  and  form 
aforesaid,  to  do  and  commit ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 

12.  Against  an  Accessory  after  the  Fact. 

[Set  out  the  offence  against  the  principal,  in  the  form  of  the 
next  preceding  precedent,  and  then  proceed.^  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
A.  B.  of,  &ic.  after  the  felony  and  robbery  aforesaid  was  com- 
mitted in  manner  and  form  aforesaid,  by  him  the  said  C.  D. 
to  wit,  on,  he.  at,  &c.  he  the  said  A.  B.  then  and  there  did  be- 
come accessary  thereto,  after  the  fact,  by  knowingly  receiving, 
harboring,  comforting,  and  maintaining,  and  otherwise  unlawfully 
assisting  the  said  C.  D. ;  he  the  said  A.  B.  then  and  there  well 
knowing  the  felony  and  robbery  aforesaid  to  have  been  done  and 
committed  by  the  said  C.  D.  in  manner  and  form  aforesaid  ; 
against  the  peace,  he.  and  contrary  to  the  form  of  the  statute,  &ic. 

13.  Indictment  against  an  Accessory  hefore  the  Fact,  in  Mur- 
der.^ 

[Frame  the  indictment  against  the  principal  in  the  usual  form, 
alleging  the  nature  of  the  murder,  and  then  proceed  as  foUows.~\ 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.  of  in  the  county  of  laborer,  be- 

fore the  said  felony  and  murder  was  committed,  in  form  afore- 
said, to  wit,  on  the  day  of  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  with  force  and  arms,  at 
in  the  county  aforesaid,  was  accessory  thereto  before  the 
fact,  and  did  feloniously  and  maliciously  incite,  move,  procure, 


*  This  indictment  is  framed  upon  the  Stat,  of  Mass.  1804,  c.  143,  §  7.  The 
section  does  not  extend  to  accessories  after  the  fact.  But  I  see  not  why  it  is 
not  an  offence  at  common  law,  and  have  added  the  form  of  such  a  charge ;  both 
of  which  are  taken  from  1  Trem.  P.  C.  289,  290.  jE-  S.  c.  /S-^.^.f.^. 

2  2  Chit.  Cr.  L.  5 ;  Cr.  Cir.  Comp.  124  (6th  Ed.)  ;  Mass.  Laws,  Stat.  1804, 

c.  123,  §  1.     The  words  of  this  statute  against  the  accessory  are  "  shall  have 

been  accessory  thereto  before  the  fact,  by  counselling,  hiring,  or  otherwise  pro- 

.     curing  i\\e  same  .to  be  done."     An  indictment  upon  this  statute  ought  to  use 

these  words  only. 


ACCESSORY. MURDER.  41 

aid,  counsel,  hire,  and  command  the  said  C.  D.  to  do  and  com- 
mit the  felony  and  murder  aforesaid,  in  manner  and  form  afore- 
said ;  against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

14.  Another  Precedent  against  an  Accessory  before  the  Fact  in 

Murder} 

[After  alleging  the  murder  against  the  principal,  in  the  usual 
form,  upon  the  first  section  of  the  statute  of  Massachusetts,  1804, 
c.  123,  §  \,the  indictment  proceeds. \  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  fiu'ther  present,  that  J.  J.  Knapp, 
of  &c.,  and  Geo.  Crovvinshicld,  of  &:c.,  before  the  said  felony  and 
murder  was  committed,  in  manner  and  form  aforesaid,  to  wit,  on 
at  were  accessory  thereto  before  the  fact,   and  fe- 

loniously, wilfully,  and  of  their  malice  aforethought,  did  counsel, 
hire,  and  procure  the  said  J.  F.  Knapp  {the  principal)  the  felony 
and  murder  aforesaid,  in  manner  and  form  aforesaid,  to  do  and 
commit ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  die  statute  in  such  case  made  and  provided. 

15.  Against  an  Accessory,  for  harl) or ing  a  principal  Felon  in 

Murder." 

[Frame  the  indictment,  against  the  principal  felon,  according 
to  the  facts  in  the  case,  and  in  the  usual  form ;  then  go  ora.]  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  A.  B.,  late  of  in   die  county  of  laborer,  well 

knowing  the  said  C.  D.  to  hav3  done,  committed,  and  perpe- 
trated the  felony  and  murder  in  manner  and  form  aforesaid,  af- 
terwards, to  wit,  on  the  day  of  in  the  year  of  our 
Lord,  with  force  and  arms,  at  aforesaid,  in  the 
county  aforesaid,  was  accessory  thereto,  and  him  the  said  C.  D. 
did  then  and  there  feloniously  receive,  harbor,  comfort,  conceal, 
and  maintain  ;  against  the  peace  of  said  Commonwealth,  and  con- 


*  This  was  the  indictment  used  against  the  accessories  before  the  fact,  in  the 
late  case  of  The  Commonwealth  vs.  /.  F.  Knapp,  as  principal,  in  the  horrid 
and  most  diabolical  murder  of  Joseph  White ;  upon  which  J.  J.  Knapp  was 
tried,  convicted,  and  executed. 

The  words  used  in  the  English  precedents  are  "  feloniously  and  maliciously  ' 
counsel  him,"  &c.  not  using  the  allegation  in  the  following  precedent,  "  felo- 
niously, wilfully,  and  of  their  malice  aforethought."   This  indictment  was  drawn 
by  the  Attorney  General  of  Massachusetts.  X.  i.  c.  /"ii.S,.  /• 

*  Archib.  Cr.  PI.  397  ;  2  Stark.  4.56.  :^.S.  <^. /3^.i^.  ^.    yi.*-j^tLc^ 
ptU,     c.*-»«^  ofc*— 9  *4.fi*«- 'J   '^*- —  "n.otr   itu**.'V  lt^c>    k—   fi-*^ 


-r 


J..  cL.Qt.^'  ^*^-  /^. 


43  ACCESSORY. BURGLARY. 

trary  to  the  form  of  tlic  statute  in  such  case  made  and  pro- 
vided.^ 

16.  Indictment  against  an  Accessory  to  a  Murder  after  the  Fact, 

upon  the  Statute  of  Massachusetts,  1804,  c.  123,  §  2. 

[^Frame  the  indictment  against  the  principal,  according  to  the 
facts  in  the  case,  and  then  go  on.]     And  the  jurors  aforesaid,  up- 
on their  oath  aforesaid,  do  further  present,  that  A.  B.,  late  of 
in  the  county  of  laborer,  after  the  wilful  murder 

was  done  and  committed  as  aforesaid  by  him  the  said  C.  D.,  he 
the  said  A.  B.,  then  and  there  well  knowing  the  same  to  have 
been  done  and  committed  by  the  said  C.  D.  in  manner  and 
form  aforesaid,  afterwards,  to  wit,  on  at  with  force 

and  arms,  did  become  an  accessory  thereto  after  the  fact,  by 
knowingly  receiving,  harboring,  comforting,  concealing,  main- 
taining, and  otherwise  unlawfully  assisting  the  said  C.  D. ;  against 
the  peace  of  said  Commonwealth,  and  against  the  form  of  the 
statute  in  such  case  made  and  provided. 

17.  Indictment  against  the  Principal  and  Accessories  before  the 

Fact,  in  Burglary." 

\^Drniv  the  indictment  against  the  principal  according  to  the 
jn'ccedents  in  Burglary,  (see  Burglary,  post,)  and  then  proceed  J^ 
And  the  jurors  aforesaid,  upon  their  oath  aforsaid,  do  further 
present,  that  A.  B.,  of  in  the  county  of  laborer,  be- 

fore the  committing  of  the  felony  and  burglary  aforesaid,  in  man- 
ner aforesaid,  to  wit,  on  the  day  of  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  at  afore- 
said, in  the  county  aforesaid,  was  accessory  thereto  before  the 
fact,  and  did,  feloniously  and  maliciously,  incite,  move,  counsel, 
hire,  and  procure,  aid,  abet,  and  command  the  said  C.  D.*^  to  do 
and  commit  the  said  felony  and  burglary,  in  manner  and  form 
aforesaid  ;  against  the  peace  of  said  Commonweahh,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 


»  2  Chitt.  Cr.  L.  6 ;  Cro.  Cir.  Comp.  125,  (6th  Ed.)  ;  Mass.  Laws,  Stat. 
1804,  c.  123,  §  2. 

2  3  Chitt.  1101  ;  Cro.  C.  C.  124,  (6th  Ed.) ;  Cro.  C.  A.  27. 

3  The  words  in  the  statute  of  Massachusetts,  1805,  c.  101,  §  1,  constituting 
the  offence  of  being  accessory  before  the  fact,  are,  "  by  counselHng,  hiring,  or 
procuring  such  b^iiglary  to  be  committed  ;  "  the  same  words  as  are  used  on  a 
similatr  charge  in  the  statute  against  murder. 


ACCESSORY. BURGLARY.  43 

18.  Indictment  against  an  Accessory  to  a  Burglary,  after  the 

Fact} 

[Draw  the  indictment  against  the  principal  according  to  the 
precedents  in  Burglary,  (see  Burglary,  post,)  and  then  proceed^] 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  tliat  A.  B.  of  in  the  county  of  laborer,  af- 

terwards, to  wit,  on  at  well  knowing  die  said  C.  D. 

to  have  done  and  committed  die  felony  and  burglary  aforesaid, 
in  manner  and  form  aforesaid,  him  the  said  C.  D.  did  then  and 
there  knowingly  harbor,  conceal,  maintain,  and  assist ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
Statute  in  such  case  made  and  provided. 

19.  Indictment  against  an  Accessory  to  a  Burglary  before  the 
Fact,  u'here  the  Principal  committed  Suicide  before  he  was 
tried.' 

The  jurors  for  said  Commonwealth,  upon  their  oath,  present, 
that  Thomas  Daniels,  lately  resident  in  Boston,  in  the  county  of 
Suffolk,  laborer,  on  the  twenty-fifth  day  of  November  now  last 
past,  about  the  hour  of  ten  in  the  night  of  die  same  day,  with 
force  and  arms,  at  Stoneham,  in  the  said  county  of  Middlesex, 
the  dwelling-house  of  Jacob  Gould,  there  situate,  feloniously  and 
burglariously  did  break  and  enter,  with  intent  the  goods  and 
chattels  of  one  David  Gould,  junior,  in  the  said  dwelling-house  then 
and  there  being,  feloniously  and  burglariously  to  steal,  take,  and 
carry  away,  and  that  lie  the  said  Thomas  Daniels,  then  and  there 
twenty  pieces  of  silver  coin,  called  dollars,  of  the  value  of  twenty 
dollars,  and  six  pieces  of  gold  coin,  called  half  eagles,  of  the 
value  of  diirty  dollars,  of  the  goods  and  chattels  of  die  said  Da- 
vid Gould,  junior,'then  and  there  in  die  dwelling-house  aforesaid 
being  found,  feloniously  and  burglariously  did  steal,  take,  and 


»  Cro.  C.  C.  125,  (6th  Ed.) 

-  The  prisoner  in  this  case  was  acquitted  upon  the  ground,  that  the  principal 
had  never  been  convicted.  The  fact  was,  tliat  the  principal  committed  suicide 
in  prison  before  the  commencement  of  the  term  at  which  He  was  to  be  tried, 
and  therefore  no  conviction  could  ever  be  had.      See  16  Mass.  R.  123. 

The  gross"  injustice  and  absurdity  of  this  principle  of  the  common  law  is 
now  universally  acknowledged.  It  has  always  been  condemned  and  even  • 
reprobated  by  many  of  the  wisest  and  best  judges  that  ever  sat  upon  the 
EnMish  Bench.  It  is  now  abrogated  in  England,  by  a  recent  statute  of 
7  Geo.  4,  c.  64,  and  in  Massachusetts  by  a  late  statute  of  IS.39  c  '  49,  in 
which  the  provisions  of  7  Geo.  4,  c.  64,  arc  subslaulially  adopted. 


44  ACCESSOUV. —  UAI'i.. 

carry  away  ;  the  said  David  Gould,  junior,  being  then  and  there, 
at  the  lime  of  hl•ellki^^  and  enterini:;  the  dwelling-house  aforesaid 
by  the  said  Thomas  Daniels,  lawfully  therein,  anil  he  the  said 
Thomas  Daniels,  being  then  and  there  at  the  time  of  breaking 
and  entering  the  dwelling-house  aforesaid  by  him  the  said 
Thomas  Daniels,  feloniously  and  burglariously  armed  with  a  cer- 
tain dangerous  weapon  called  a  dagger,  airainst  the  peace  of  said 
Commonweallh,  and  against  the  form  of  the  statute  in  such  case 
made  and  jirovided.  And  the  jurors  aforesaid,  upon  their  oatli 
aforesaid,  do  further  present,  that  James  Phillips,  lately  resident 
in  Boston,  in  the  said  county  of  Suftblk,  laborer,  before  the  com- 
mitting of  said  felony  and  burglary  in  manner  aforesaid,  to  wit, 
on  the  twentieth  day  of  the  same  montli  of  November  now  last 
past,  at  Sloncham  aforesaid,  in  the  county  of  .Middlesex  afore- 
said, did  jeloniously  and  maliciously  counsel,  hire,  and  procure 
the  said  Thomas  Daniels  to  do  and  commit  the  said  felony  and 
burglary,  in  manner  and  form  aforesaid,  against  the  peace  of  said 
Comnn)nwealth,  and  against  the  form  of  the  statute  in  such  case 
made  and  provided.  And  the  jtn-ors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  since  the  committing  of  the 
felony  and  burglary  aforesaid,  in  manner  aforesaid,  by  the  said 
Thomas  Daniels,  to  wit,  on  the  twelfth  day  of  December  now 
last  past,  at  Cambridge,  in  the  county  of  Middlesex  aforesaid, 
the  said  Thomas  Daniels  died  by  the  act  of  suicide,  and  as  a 
felon  of  himself,  and  that  no  trial  or  conviction  of  the  said 
Thomas  Daniels  for  the  felony  and  burglary  aforesaid,  before 
the  death  of  him  the  said  1  homas  Daniels,  was  ever  prosecuted 
or  had. 

20.  Indictment  against  an  Accessory  to  a  Rape,  before  the  Fact? 

\^Draw  (he  indictment  against  the  principal,  according  to  the 
precedents  in  Rape,  (see  Rape,  post,)  and  then  proceed.]  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  A.  B.,  of  in  the  county  of  laborer,  before  the 

committing  of  the  felony  and  rape  aforesaid,  in  manner  aforesaid, 

*  There  are  no  precedents  against  accessories  to  a  rape,  either  in  Chitty, 
Tremainc,  Starkie,  or  Cro.  Cir.  Comp.  But  as  rape  is  made  felony  by  statute, 
it  must  have  all  the  parts  and  ingredients  of  felony  at  common  law.  1  Hale 
631,  G32 ;  3  Chit.  C.  L.  811.  In  Massachusetts,  and  probably  in  the  other  United 
States,  accessories  are  expressly  mentioned,  and  made  punishable  by  statute. 
See  Mass.  ^aws,  stat.  1S05,  c.  97.  See  also  Hawk.  b.  1,  c.  41,  §  C ;  4  Burr. 
2179;  Dall.  c.  107;  Hutt.  115. 


ACCESSOUY. ARSON.  45 

to  wit,  on  the  day  of  in  the  year  of  our  Lord  one 

liiousand  cij;hl  hundred  and  at  in  the  county  afore- 

said, was  accessory  to  said  felony  and  rape  hefore  the  fact, 
and  then  and  i.ere  did  feloniously  and  maliciously  counsel,  hire, 
procure,  and  conunand  the  said  C.  D.  (the  principal  felon)  to 
do  and  commit  the  felony  and  rape  aforesaid,  in  manner  and 
form  aforesaid ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided.* 

21.  Against  an  .•Icccssonj  to  a  liapc,  after  the  Fact. 

^^Frame  the  indictment  against  the  principal,  according  to  the 
precedents  in  Jiajit,  (see  Rape,  post,)  and  then  proceed.  And 
the  jurors  aforesaid,  upon  Uieir  oaih  aforesaid,  do  turdjer  present, 
that  A.  B.,  of  in  the  county  of  laborer,  afterwards, 

to  wit,  on  the  day  of  now  last  past,  with  force  and 

arms,  at  15  aforesaid,  in  the  county  aforesaid,  well  know- 

ing the  said  C.  D.  {the  principal  felon)  to  have  done  and  com- 
mitted the  felony  and  rape  aforesaid,  in  manner  and  form  afore- 
said, him  the  said  C.  U.  diil  then  and  there  knowingly  harbor, 
conceal,  maintain,  and  assist  the  said  C.  D.  therein  ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  lorm  of  the 
statute  in  such  case  made  and  provided.- 

22.  Indictment  against  an  Accessory  before  the  Fact,  to  an  Arson? 

[Frame  the  indictment  against  the  principal  according  to  the 
precedents  in  Arson,  (see  Arson,  post,)  ami  then  proceed^     And 

'  The  words  of  the  statute  of  &f  assachusetts,  creating  the  offence  of  accessory 
to  a  rape,  before  the  fact,  are,  "  by  counselling,  procuring,  or  comnianding." 
This  form,  in  which  the  English  forms  in  other  similar  cases  are  adopted,  includes 
these  words  of  our  statute  and  many  more.  It  would  therefore  be  good  ;  but  it 
would  be  more  technical  to  use  the  words  of  the  statute  only. 

*  By  ihc  statute  of  Mass.  1805,  c.  97,  §  2,  the  penalty  extends  to  an  acces- 
sory after  Ihc  fact,  bolli  as  to  the  principal  felon  and  also  to  the. accessory  before 
the  fact.  When,  therefore,  one  is  prosecuted  as  an  accessory  after  the  fact,  to 
an  accessory  before  the  fact,  the  indictment  must  state  the  oflbnce  and  con- 
viction of  the  latter ;  for  the  form  of  which  see  post,  "  Rape,"  and  then  it  must 
go  on  to  allege  the  oflencc  of  the  accessory  after  the  fact,  according  to  this  and 
otlier  precedents  of  lliis  kind. 

'  There  are  no  precedents  against  accessories  in  Arson,  in  Chitty,  Starkie, 
Cro.  Cir.  Comp.,  or  Tremaine.  But  Arson  is  a  felony  at  common  law ;  1  Hawk. 
165;  1  Hale,  55G :   and  therefore  there  may  be  accessories  in  arson  as  in  all 


46  ACCESSORY. ARSON. 

the  jurors  aforesaid,  upon  tlicir  oath  aforesaid,  do  further  pre- 
sent, tliat  A.  B.,  of  in  tiic  county  of  laborer,  before 
tiie  committing  of  the  felony  and  arson  aforesaid,  in  manner  and 
form  aforesaid,  to  wit,  on  at  in  the  county  afore- 
said, did  feloniously  and  maliciously  counsel,  hire,  and  procure  the 
said  C.  D.  to  do  and  commit  the  said  felony  and  arson,  in  man- 
ner and  form  aforesaid  ;  ^  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

23.  Against  an  Accessory  after  the  Fact  for  harhoring,  ^c.  the 
Principal  to  an  Arson,  on  the  bth  Section  of  the  Statute  of 
Massachusetts,  1 804,  c.  IS  I. 

[Frame  the  indictment  against  the  principal,  accordimg  to  the 
precedents  in  Arson,  and  then  procced.'\  And  the  jurors  afore- 
said, upon  their  oatii  aforesaid,  do  further  present,  that  A.  15.,  of 

in  the  county  of  laborer,  on  the  day  of 

at  B.  aforesaid,  in  the  county  aforesaid,  afterwards,  to  wit,  on 
the  day  of  at  B.   aforesaid,   in  the  county    afore- 

said, w^ell  knowing  the  said  C.  D.  to  have  done  and  committed 
the  felony,  arson,  and  offence  aforesaid,  did  him  the  said  C.  D. 
then  and  there  knowingly  harbor,  conceal,  maintain,  assist,  and 
receive,  after  the  felony,  arson,  and  offence  aforesaid  was  done 
and  committed,  in  manner  aforesaid,  by  him  the  said  C.  D. ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided." 


other  felonies.  The  statute  of  Massachusetts  of  1804,  c.  131,  §  1,  extends  to 
accessories  before,  and  §  5  to  accessories  after  the  fact.  See  also  Common- 
wealth vs.  Barlow,  4  Mass.  R.  431) ;  Commonivcalth  vs.  Macomber,  3  Mass.  R. 
254 ;  Commonwealth  vs.  A''ewaU  et  al.  7  Mass.  R.  245,  as  to  accessories 
after  the  fact. 

*  The  words  of  the  statute  of  Massachusetts  are  "  by  counselling,  hiring,  or 
procuring  the  same  to  be  done,"  §  1. 

^  A  similar  count  may  be  drawn  against  an  accessory  after  the  fact,  upon 
the  same  section  of  the  statute,  for  harboring,  concealing,  &c.  an  accessory 
before  the  fact.  In  which  case  the  conviction  of  the  accessory  must  be  tech- 
nically alleged,  and  then  you  proceed,  as  above,  against  the  accessory  after  the 
fact. 


ACCESSORY. MAYHEM.  47 

24.  Indictment  against  an  Accessory  to  a  Mayhem  before  the 

Fact.^ 

[Frame  the  charge  against  the  principal,  according  to  the 
precedents  in  Mayhem  (see  Maim,  post,)  and  then  proceed.'] 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.,  of  in  the  county  of  laborer,  be- 

fore the  said  maim  was  committed,  in  manner  and  form  afore- 
said, to  wit,  on  tlie  day  of  now  last  past,  at 
m  the  county  aforesaid,  wilfully,  maliciously,  and  unlawfully  did 
counsel,  hire,  and  procure  the  said  C.  D.,  {the  principal,)  the 
niaim  aforesaid,  in  manner  and  form  aforesaid,  to  do  and  com- 
mit ;  against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided.* 

Accessory  in  Pir.vcy  before  and  after  the  fact. — Sec  "  V\- 
racy,"  post.  V 


'Mass.  Laws  statute  isn4,  c.  123,  §4;  Commonwealth  vs.  JVewall  el  al 
7  Mass.  K.  2i5,  —jwsl.  Maim. 

-  In  drawing  an  indictment  against  an  accessory  to  this  offence,  the  particular 
species  of  maim,  (of  whicli  there  are  a  great  variety,)  of  which  the  principal 
has  been  convicted,  or  is  cliarged,  must  be  minutely  stated  in  tlic  indictment 
against  the  accessory.  Tlie  statute  of  Massachusetts,  above  quoted,  is  sUent 
as  to  accessories  after  the  fact.     See  post.  Maim. 

•  Since  the  preceding  precedents  against  accessories  in  felonies  were  written, 
the  legislature  of  Massachusetts  has  followed  the  example  of  the  English  gorem- 
mcnt,  and  abolished  one  of  the  most  unjust  and  odious  principles  ofihe  common 
law  rclaUvc  to  the  trial  of  accessories  before  and  after  the  fact.  By  the  statute 
of  Massachusetts  of  1830,  c.  4'.\  it  is  enacted,  that  an  accessory  "  shall  be  deemed 
-uilty  of  felony,  and  may  be  in<licted  and  convicted,  either  as  an  accessory 
before  the  fact  to  the  principal  felony,  together  with  the  principal  felon,  or  after 
the  conviction  of  the  principal  felon;  or  maybe  indicted  and  convicted  of  a 
substantive  felony,  whether  the  principal  felon  shall  or  shall  not  have  been 
previously  convicted,  or  shall  or  shall  not  be  amenable  to  jusUce,  and  may  be 
punished  in  the  same  manner  as  any  accessory  before  the  fact  to  the  same  felo- 
ny,  if  convicted  as  an  accessory,  may  be  punished."  And  the  same  provision 
is  extended  to  accessories  after  the  fact,  in  §  3  of  the  statute.  ' 


48  ADULTERY. 


ADUT.TERY. 

25.  Indictment  for  Adultery,  by  a  Married  Man  with  an  Un- 
married Wovian} 

The   jurors  for  said  Coinnionwcalth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  yeoman,  on  the 

day  of  in  the  year  of  our  Ivord  one  tliousand  eight 

hundred  and  at  H.   aforesaid,   in  the  county  aforesaid,  did 

commit  die  crime  of  aduhcry  with  one  C.  D.,  of  said  15.,  spin- 
ster, hy  then  and  there  having  carnal  knou  ledge  of  the  body  of 
iier  the  said  C.  D.,  he  die  said  A.  B.  heing  dien  and  Uiere  a 
married  man  and  iiaving  a  lawful  wife  alive ;  against  the  peace 
of  said  Commonwealth,  and  contiary  to  the  form  of  llie  statute 
in  such  case  made  and  provided.    /;  /^.yV^*r.  f-^s, 

2G.  For  Adultery,  by  a  Married  Man  with  a  Married  JVoman. 

The  jurors  8ic.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  yeoman,  on  the  day  of  in 

the  year  of  at  B.  aforesaid,  in  the  county  aforesaid,  did 

commit  the  crime  of  adultery  with  one  C.  D.,  die  wife  of  one 
E.  F.,  by  having  carnal  knowledge  of  the  body  of  her  die  said 
C.  D.,  he  the  said  A.  B.  being  then  and  dicie  a  married  man, 
and  having  a  lawful  wife  alive  ;  and  she  the  said  C.  D.  being  then 
and  there  a  married  woman,  and  the  lawful  wife  of  the  said 
E.  F.  ;  against  die  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

Affray.     See  "  Riot." 


*  There  are  no  precedents  of  indictments  for  adulteiy,  in  the  English  common 
law  courts,  [t  is  an  ofTcncc  within  the  jurisdiction  of  the  spiritual  courts, 
and  is  proceet'ed  with  according  to  the  rules  of  the  canon  law ;  4  Bl.  Com.  64. 


ARSON,  AND  OTHEK  MALICIOUS  BURNING.  49 


ARSON,  AND  OTHER  MALICIOUS  BURNING. 

27.  Indictment  for  Arson} 

The  jurors  for  said  Commoinvcallli,  upon   their  oath  present, 
that  A.  13.,  of  in  the  counly^ol  laborer,  on  the 

day  of  now  last  past,  about  the  hour  of  twelve  in  the  ni::;;lit 

of  the  same  (lay,  at  H.  aforesaid,  in  the  couiiiy  aforesnid,  the 
dweiiiu'^-houAe  of  one  C.  U.  there  situate,  fc'iouiously,  willully, 
and  maliciously  did  set  fire  to,  and  the  same  house  then  and  there, 
by  iho  kindling  of  such  fire,  did  feloniously,  wilfully,  and  mali- 
ciously burn  and  consume  ;  a2;ainst  the  peace  of  said  Common- 
weahli,  and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

23.  For  setting  Fire  to  a  Buililing,  whereby  a  Dwelling-house 
was  burnt  in  the  JVight  Time. 

The   jurors  for  said  Commonwealth,  uj)on  their  oath   present, 
that  A.  IJ.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  about  the  hour  of  two  in  the  night  of 

the  same  day,  at  B.  aforesaid,  in  the  county  aforesaid,  a  certain 
building  of  one  C.  D.,  there  also  situate,  calL'd  a  wood-house, 
leloniously,  wilfidly,  and  maliciously  diil  set  fire  to  and  burn,  and 
that  by  the  kin<llin;i;  of  said  fire,  and  by  the  burnins;  of  said  wood- 
house,  the  dwelling-house  of  one  E.  F.,  there  also  situate,  was 
then  and  there,  in  the  night  time,  feloniously,  wilfully,  and  ma- 
liciously burnt  and  consumed  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  lo  the  form  of  the  statute  in  such  case 
made  and  provided. 


29.  For  maliciously  setting  Fire   to  a  Building  adjoining  a 
Dwelling-house,  whereby  a  Dwelling-house  was  burnt. 

The  jurors  for  said  Commonweahh,  upon  their  oadi   present, 
that  A.  B.  of  B.,  in  the  county  aforesaid,  laborer,  on  the 
day  of  now   last    past,   about   the   hour  of  twelve   in   the 

night  of  the  same  day,  at  B.  aforesaid,  in  the  county  aforesaid,  a 
certain  out-building,  called  a  wood-house,  of  one  C.  D.,  there 
situate,  and  adjoining  lo  the  dwelling-house  of  him  the  said  C.  D., 

'  This  and  the  six  following  precedents,  arc  drawn  upon  the  statute  of  Mas- 
sachusetts of  1804,  c.  131,  but  they  conform  to  similar  precedents  in  Starkie, 
Chitty,  and  the  other  authorities,  containing  precedents  for  these  offences. 
7 


50  ARSON,  AND  OTHER  MALICIOUS  BURNING. 

also  there  situate,  feloniously,  wilfully,  and  maliciously  did  set 
fire  to,  and  that  by  the  kindling  of  said  fire,  the  said  dwelling- 
house  of  him  the  said  C.  D.  was  then  and  there,  in  the  night 
time,  feloniously,  wilfully,  and  maliciously  burnt  and  consumed  ; 
a"-ainst  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

30.  Foi-  malkioushj  burning  a  Stable  within  the  Curtilage  of  a 

DweUing-housc. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.  of  B.,  in  the  county  aforesaid,  laborer,  on  the 
day  of  now  last  past,  about  the  hour  of  eleven,  in  the  night 

of  the  same  day,  at  B.  aforesaid,  in  the  county  aforesaid,  did 
wilfully  and  maliciously  set  fire  to  a  certain  stable  ^  of  one  C.  D., 
then  and  there  situate,  and  being  within  the  curtilage  of  the  duel- 
ling-house of  him  the  said  C.  D.,  there  also  situate,  and  that  by 
the  kindling  of  such  fire,  the  aforesaid  stable,  situate  and  being 
within  the  curtilage  of  said  dwelling-house  as  aforesaid,  was 
then  and  there,  in  the  night  time,  wilfully  and  maliciously  burnt 
and  consumed  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

31 .  For  burning  a  Dtvelling-hovse  in  the  Day  Time  :  On  the  Sec- 
ond Section  of  the  Statute  of  Massachusetts  of  lS(i4,  c.  131,  §2. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  laborer,  on  the  ^ 

day  of  now  last  past,  with  force  and   arms,   at  B.  in   the 

county  aforesaid,  the  dwelling-house  of  one  C.  D.  there  situate, 
in  the  day  time,  did  wilfully  and  maliciously  set  fire  to  and  burn; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the   statute  in  such  case  made  and  provided.^ 

32.  For  maliciously  burning  a  Meeting-house :     On  the  second 
Section  of  the  Statute  of  Massachusetts  of  1804,  c.  131. 

The  jurors  for  said  Commonwealth,  upon   their  oath   present, 
that  A.B.,  of  in  the  county  aforesaid,  laborer,  on  the 


1  The  same  allegation  to  be  used  for  a  bam  or  store,  the  two  other  buildings 
mentioned  in  the  second  section  of  the  statute. 

*  If  the  fire  was  set  to  an  out-building  adjoining  the  dwelling-house,  or  to 
any  other  building  whereby  the  dwelling-hoijse  was  burnt,  the  facts  must  be 
alleged  as  in  precedents  No,  28  and  29, 


ARSON,  AND  OTHER  MALTCIOUS  BURNING.  51 

day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

said, a  certain  meeting-lionse  there  situate,  belonging  to  the  first 
parish  in  the  said  town  of  B.,  and  erected  for  public  uses,  to  wit, 
for  the  public  worship  of  Almighty  God,  did  then  and  there  wil- 
fully and  maliciously  set  fire  to,  and  tliat  by  the  kindling  of  such 
fire  the  said  meeting-house  was  then  and  there,  in  the  niglit  time, 
wilfully  burnt  and  consumed  ;  against  the  peace  of  said  Com- 
nionweallh,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 

33.  For  maliciously  lurniiig  a  Vessel,  lijing  within  the  body  of 
the  County:  On  the  third  Section  of  the  Statute  of  Massachu- 
setts 0/1804,  c.  131. 

The  iurors  for  said  Commonwealth,  upon  their  oath   present, 
ihat  A.  13.  of  B.,  in  die  county  aforesaid,  laborer,  on  the 
day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

said, a  certain  vessel,  called  the  being  the  properly  of  one 

C.  1).,then  and  there  lying  anil  being  at  B.  aforesaid,  and  within 
the  body  of  the  said  county  of  did  wilfully  and  maliciously 

set  fire  to,  burn,  and  consume  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.' 

34.  Jlnothei  Precedent  for  Arson? 

[^Caption  and  Commencement  as  in  Precedent,  Ab.  1.] 

The  jurors  for  said  CommonweaUh,  upon  their  oath  present, 

that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  at  in   the  county  aforesaid,  a 

certain  house  *  of  one  C.  C.  there  situate,  feloniously,  wilfully, 


»  The  same  form  is  to  be  adopted  as  to  the  other  public  buildings,  mentioned 
in  the  second  section  of  the  statute,  alleging  for  what  public  use  they  were 
erected ;  as,  "  a  court-house,  belonging  to  the  county  of  B.,  and  erected  for 
public  use,  to  wit,  for  transacting  the  judicial  business,  and  for  holding  the  ju- 
dicial courts  for  said  county  of  B." 

*  The  same  form  as  the  preceding  may  be  adopted  in  all  the  cases  mentioned 
in  the  third  and  fourth  sections  of  the  statute,  varying  the  allegation  as  to  the 
name  «f  the  building,  or  article  burnt,  according  to  the  fact,  and  describing  the 
same  in  the  identical  words  of  the  statute. 

'  Taken  from  Stark.  Cr.  PI.  417. 

«  Not  necessary  to  allege  it  a  dwelling-house,  but  the  building  ought  to  be 
described  in  the  words  of  the  statute.  Stark.  Cr.  PI.  417,  note  (m.)  and  the 
cases  there  cited,  viz.  1  Hale,  5G7,  570  ;  3  Inst.  67 ;  1  Hawk,  c,  39,  §  1 ; 
East,  P.  C.  1034;  also  3  Chitt.  C.  L.  1107. 


52  ARSON,  AND  OTHF.R  MALICIOUS  BURNING. 

and  maliciously  did  set  fire  to,  and  the  same  house  then  and 
there,  by  such  firing  as  aforesaid,  feloniously,  wilfully,  and  ma- 
liciously did  burn  and  consume  ;  against  the  peace  of  said  Com- 
monvveakh,  and  against  the  form  of  the  statute  in  such  case 
made  and  provided. 

25.  For  burning  his  own  House  with  intent  to  defraud  the  In- 
surers. 
The  jurors  for  said  Commonwealth,  upon  their  oath   present, 
that  A.  B.,  of  in  the  county  of         yeoman,  on  the  day 

of  in  the  year  of  our  Lord  &:c.  (feloniously,)  wilfully,  ma- 

liciously, and  unlawfully  did  set  fire  to  a  certain  dwelling-house, 
being  the  property  and  in  possession  of  him  the  said  A.  B., 
and  the  same  dwelling-house,  by  such  firing,  did  then  and  there 
burn  and  consume,  with  intent  thereby  a  certain  corporation, 
called  The  Massachusetts  Mutual  Fire  Insurance  Company}  to 
injure  and  defraud;  against  the  peace  and  dignity  of  said  Com- 
monwealth, and  contrai-y  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 

36.  For  setting  Fire  to  a  Gaol. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  B.,  laborer,  on  the 

day  of  now  last  past,  at  in  the  county  aforesaid,  a 

certain  building  there  situate,  called  a  gaol,  (the  same  being  then 
and  there  the  prison  and  common  gaol  of  the  said  county  of  B.) 
the  property  of  the  inhabitants  of  the  said  county  of  B.,  and  then 
and  there  erected  for  public  use,  to  wit,  for  the  use  and  pur- 
pose of  a  public  and  common  gaol  and  prison,  for  the  confine- 
ment and  imprisonment  of  prisoners  lawfully  committed  to  the 
same,  did  then  and  there  wilfully  and  maliciously  set  fire  to;  and 
that  the  same  building,  by  the  kindling  of  such  fire,  was  then  and 
there  wilfully  and  maliciously,  in  the  night  time,  burnt  and  con- 
sumed ;  against  the  peace  and  dignity  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.^ 

*  The  coiporate  name  to  be  truly  and  correctly  inserted. 

2  This  precedent  Is  taken  from  Stark.  Cr.  PI.  420,  and  is  drawn  upon  the 
statute  of  43  Geo.  3,  c.  58,  §  1.  There  may  be,  and  if  not,  there  ought  to  be, 
similar  statutes  in  this  country.  Qumre.  Is  it  not  an  oifence  at  common  law  ^ 
This  precedent  concludes  at  common  law  as  well  as  upon  the  statute. 

^  There  is  a  precedent  similar  to  this  in  Stark.  Cr.  PI.  422,  and  another  in 
3  Chitt.  C.  L.  1110.      1  have  altered  them,  by  adding  a  more  particular  de- 


ARSON,  AND  OTHER  MALICIOUS  BURNING.  53 

37.  For  a  Misdemeanor  at  Common  Law,  in  setting  Fire  to 
Defendanfs  own  House,  contiguous  to  others;  to  the  public 
Alarm,  &fc. 

The  jurors  for  said  Commonwealth,  upon  their  oath   present, 
that  A.  B.,  of  in  the  county  of  laborer,  unlawfully 

and  maliciously  devising  and  intending  to  set  on  fire  and  burn  a 
certain  liouse  belonging  to  him  the  said  A.  B.,  situated  in 
aforesaid,  in  the  county  aforesaid,  on  the  day  of  in 

the  year  of  our   Lord,  fee.   at  aforesaid,  in   the  county 

aforesaid,  unlawfully,  wickedly,  and  maliciously  did  set  fire  to  a 
certain  part  of  the  wooden  floor  of  and  belonging  to  said  house, 
which  said  house  was  then  and  there  contiguous  and  near  to 
certain  dwelling-houses  of  and  belonging  to  divers  other  citizens 
of  the  Commonwealth,  situate   in  the   town  of  aforesaid, 

with  a  wicked  intention,  by  means  of  such  setting  fire  to  the 
wooden  floor  aforesaid,  belonging  to  said  house  of  him  the  said 
A.  B.,  then  and  there  unlawfully,  wilfully,  and  maliciously  to 
set  on  fire  and  burn  the  said  house  of  him  the  said  A.  B.,  to  the 
great  damage,  danger,  fear,  and  terror  of  all  the  citizens  of  said 
Commonwealth,  near  the  house  of  the  said  A.  B.,  then  and 
there  inhabiting,  residing,  and  dwelling,  and  against  the  peace 
and  dignity  of  the  Commonwealth  aforesaid.^ 

38.  For  a  Misdemeanor  at  Common  Law  against  a  Lodger,  for 
setting  Fire  to  the  JVainscot  of  her  Room,  ivith  Intent  to  burn 
the  other  Rooms.^ 

Tlie  jurors  for  said  Commonwealth,  upon  their  oath   present, 
that  A.  B.,  of  in  the  county  of  widow,  on  the 

day  of  &c.,  at  aforesaid,  in  the  county  aforesaid,  unlawfully, 

wilfully,  and  maliciously  did  set  fire  to  the  wainscot  of  and  belong- 
ing to  a  certain  room,  then  being  in  the  occupation  of  her  the  said 
A.  B.,  and  then  being  part  and  parcel  of  the  dwelling-house  of  one 
C.  D.  there  situate,  and  which  said  dwelling-house  there  was  con- 
tiguous and  adjoining  to  certain  other  dwelling-houses  of  and  be- 
longing to  divers  citizens  of  this  Commonwealth,  with  a  wicked  in- 
scription of  the  building.  The  precedent  in  Starliie  is  at  common  law.  I  have 
concluded  this  precedent  both  at  common  law  and  on  the  sfatute.  A  gaol, 
though  not  particularly  mentioned  in  the  statute  of  Massachusetts,  as  a  building 
erected  for  public  use,  may  be  considered  as  such  a  building,  and  has  been  so 
considered  in  a  case  at  7iisi  pritis  in  the  Supreme  Court  of  Massachusetts,  per 
Sedgwick  J. 

1  3  CWtt.  C.  L.  1111. 

*  Chitt.  C.  L.  1112,  refers  to  a  similar  precedent  in  4  Wentworth,  59. 


54  ASSAULTS. 

tcntion,  by  means  thereof,  then  and  there,  unlawfully,  wilfully, 
and  maliciously  to  burn  and  consume  the  said  room,  and  two 
other  rooms  then  and  there  being  in  the  occupation  of  her  the 
said  A.  B.,  and  which  said  last  mentioned  rooms,  then  were  part 
and  parcel  of  the  dwellinti-iiousc  of  him  the  said  C.  D.,  to  the 
great  damage  of  the  said  C.  D.,  to  the  great  danger,  fear,  and 
terror  of  all  the  citizens  of  said  Commonwealth  near  the  dwelling 
of  the  said  C.  D.  then  and  there  inhabiting  and  dwelling,  and 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 


ASSAULTS. 


39.  For  an  Assault  not  accompanied  ivith  a  Battery. 

[Caption  and  commencement  as  in  precedent  JVo  1.] 
The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on 

with  force   and  arms,   at  in  the  county  aforesaid,  in  and 

upon  one  C.  D.,  [in  the  peace  of  the  said  Commonwealth  then 
and  there  being,^]  with  a  certain  offensive  weapon  called  a  cane, 
did  make  an  assault,  and  other  wrongs  to  the  said  C.  D.  then 
and  there  did  and  committed,  to  the  great  injury  of  him  the  said 
CD.,  and  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

40.  For  a  common  Assault  and  Battery. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on 

with  force   and  arms,   at  in   the  county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.,  [in  the  peace  of  the  said  Common- 
wealth then  and  there  being,^]  an  assault  did  make,  and  him  the 
said  C.  D.  did  then  and  there  beat,  abuse,  wound,  and  ill  treat,^ 
and  other  wrongs,  then  and  there  did  and  committed,  to  the  great 


1  These  words  are  not  necessary,  and  are  not  always  used.  See  3  Chitt.  C.  L. 
821,  note  (c.)  ;  Cro.  C.  C.  150  (6th  Ed.)  note  (b). 

2  The  words  "so  that  his  life  was  greatly  despaired  of"  are  usually  inserted 
in  the  English  precedent;  they  ought  to  be  onrjitted,  unless  the  battery  is 
greatly  aggravated  ;  in  all  cases  the  allegation  ought  to  be  according  to  the  fact. 
3  Chitt.  C.  L.  821,  note  (d.) 


ASSAULTS.  55 

damage  of  him  the  said  C.  D.,  and  against  the  peace  and  dignity 
of  the  CoinmonweaUh  aforesaid. 

41.  For  an  Assault  and  Battery.,  by  casting  a  Person  on  a  Brick 
Floor,  kicking,  <^c.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  with  force   and    arms,  at  aforesaid,  in  the 

county  aforesaid,  in  and  upon  the  body  of  one  C  D.,  [in  the 
peace  of  said  Commonwealih  then  and  there  being,]  did  make 
an  assault,  and  him  the  said  C.  D.  did  then  and  there  beat, 
wound,  and  ill  treat ;  and  that  the  said  A.  B.  with  both  his 
hands,  did  then  and  there  violently  cast  and  throw  the  said  C.  D. 
upon  and  against  a  certain  brick  floor  there,  and  him  the  said 
C.  D.,  in  and  upon  his  head,  breast,  back,  sides,  and  other  parts 
of  his  body,  with  the  feet  of  him  the  said  A.  B.,  then  and  there 
violently  and  cruelly  did  kick,  strike,  and  beat;  giving  to  the 
said  C.  D.  then  and  there,  as  well  by  such  casting  and  throwing 
of  him  the  said  C.  D.  as  also  by  such  kicking,  striking,  and 
beating  of  him  the  said  C.  D.  as  aforesaid,  in  and  upon  the 
head,  breast,  back,  and  sides  of  him  the  said  C-  D.,  divers 
bruises  and  wounds,  and  other  wrongs  then  and  there  did  and 
committed,  to  the  great  damage  of  him  the  said  C.  D.,  and 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

42.  For  an  Assault,  and  beating  out  an  Eye.^ 

The  jurors  &;c.  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  widow,  [being  a  person  of  depraved  and 

malicious  disposition,]  on  the  day  of  with  force  and 

arms,  at  aforesaid,   in  the  county  aforesaid,  in  and  upon 

one  C.  D.,  violently  did  make  an  assault,  and  her  the  said  C.  D. 
did  then  and  there  beat,  wound,  and  ill  treat,  and  that  she  the 
said  A.  B.  with  her  right  hand,  the  said  C.  D.  in  and  upon  the 
left  eye  of  her  the  said  C.  D.,  then  and  there  unlawfully,  vio- 
lently, and  maliciously  did  strike ;  by  means  whereof  the  said 
C.  D.,  then  and  there,  the  use,  sight,  and  benefit  of  her  said 
left  eye  entirely  lost  and  was  deprived  of;  and  also  by  means  of 
the  premises,  she,  the  said  C.  D.,  became  weak  and  sick,  and 


1  3  Chitt.  C.  L.  821,  822,  who  refers  to  similar  precedents  in  Cio.  C.  C.  and 
Stark.  391. 

*  3  Chitt,  Cr.  L.  822,  and  the  precedents  there  quoted  from  Stark,  and  Cro. 
C.  C.  143  (6th  Ed.)  ;  Stark.  388. 


5G  ASSAULTS. 

remained  so  weak  and  sick,  from  thence,  until  the  day  of  taking 
this  inquisition,  and  other  wrongs  then  and  there  did  and  com- 
mitted, to  the  great  (hunage  of  the  said  C.  D.,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid.^ 

43.  For  an  Assault^  and  tearing  the  Hair  off  Prosecutor''s 

Head. 

The  jurors  for   said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  aforesaid,  laborer,  on 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and  upon 

the  body  of  one  C.  D.  [in  die  peace  of  the  said  Commonwealth 
then  and  there  being],-  did  make  an  assault,  and  iier  the  said 
C.  D.  did  then  and  there  beat,  wound,  and  abuse;  and  that  he 
the  said  A.  B.  did  then  and  tliere  unlawfully,  violently,  and  cru- 
elly seize  and  lay  hold  of  the  said  C.  D.  by  the  hair  of  her 
head  ;  and  did  then  and  there  with  great  force,  wrath,  and  vio- 
lence, pull  and  drag  the  said  C.  D.  by  the  same;  by  means 
wlicreof  he  the  said  A.  13.  did  then  and  there  unlawfully,  cruelly, 
and  brutally  pull  and  tear  the  hair  of  tlie  head  of  her  the  said 
C.  D.  otFby  the  roots  ;  and  the  head  of  her  the  said  C.  D.  was 
thereby  grievously  wounded  and  hurl,  and  the  said  C.  D.  there- 
by put  in  great  pain  and  torture  ;  and  other  wrongs  then  and 
there  did  and  committed,  to  the  great  damage  of  her  the  said 
C.  D.,  and  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid.'^ 

44.  For  an  Assaidt  with  a  Cane. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  aforesaid,  laborer,  on  the 

day  of  with  force  and  arms  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  C.  D.  did  make  an  assault,  and  hini 
the  said  C.  D.  with  a  large  cane,  which  the  said  A.  B.  in  his 
right  hand  then  and  there  had  vUid  held,  did  strike  divers  griev- 
ous and  dangerous  blows  upon  the  head,  back,  and  shoulders, 
and  other  parts  of  the  body  of  him  the  said  C.  D.,  whereby  the 
said  C.  D.  was  grievously  and  dangerously  beaten,  bruised,  and 
wounded,  and  his  life  endangered  ;  and  other  wrongs  tlien  and 
there  did  and  committed,  to  the  great  damage  of  him  the  said 
C.  D.,  and  against  die  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

1  Add  a  count  for  a  common  assault  as  in  precedent  No.  40. 

^  These  words  are  not  necessary.     Se  ante,  precedent  No.  39,  note  (1.) 

'  See  a  similar  precedent  in  3  Chitt.  C.  L.  822  ;  Cro.  C.  C.  144  (6th  Ed.) 


ASSAULTS.  57 


45.  For  assaulting  the  Driver  of  a  Chaise,  and  overturning  the 
Chaise  ivith  the  PV heel  of  a  Cart. 

Tlie  jurors  for  said  Commonwealth,  upon  their  oath  present, 
tlial  A.  B.,  of  in   the  county  of  laborer,  on 

with  force  and  arms,  at  B.,  in  the  county  aforesaid,  in  and  upon 
one  C.  D.  did  make  an  assault ;  he  the  said  C.  D.  being  then 
and  there  in  a  certain  chaise  drawn  by  one  horse,  and  in  the 
public  street  and  common  highway  there  ;  and  that  he  the  said 
A.  B.,  then  and  there  driving  a  horse  drawing  a  carl,  did,  in  the 
highway  aforesaid,  unlawfully,  violently,  wantonly,  and  malicious- 
ly drive  said  horse,  so  as  aforesaid  drawing  said  cart,  to  and 
against  the  chaise  aforesaid  ;  and  that  by  such  driving,  did  then 
and  there  in  the  highway  aforesaid  unlawfully,  wantonly,  and 
maliciously  force  said  cart  against  the  said  chaise,  and  thereby 
overturn  the  said  chaise  in  which  the  said  C.  D.  then  w^as  as 
aforesaid,  with  one  of  the  wheels  of  said  cart ;  by  means  whereof, 
he  the  said  C.  D.  was  then  and  there  grievously  hurt,  bruised, 
and  wounded ;  and  other  wrongs  then  and  there  did  and  com- 
mitted, to  the  great  damage  of  him  the  said  C.  D.,  and  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

4G.  For  an  Assault  by  driving  a  Coach  against  Prosecutor''s 

Chaise.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  coachman,  on 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid, 
in  and  upon  the  bodies  of  one  C.  D.  and  one  E.  F.,  an  assault 
did  make,  and  in  the  highway  there,  unlawfully,  wilfully,  and  fu- 
riously did  drive  four  horses,  then  and  there  drawing  a  certain 
stage-coach,  under  the  care  and  guidance  of  him  the  said  A.  B., 
in  the  highway  aforesaid,  towards  and  against  a  certain  four- 
wheel  chaise,  then  and  there  drawn  by  one  horse,  in  the  highway 
aforesaid,  wherein  the  said  C.  D.  and  E.  F.  were  then  and 
there  respectively  passing  and  travelling  in  the  highway  afore- 
said ;  and  that  the  said  A.  B.  by  such  driving  of  the  said  four 
horses  so  drawing  the  said  coach,  then  and  there  unlawfully,  wil- 
fully, wantonly,  and  maliciously  did  overturn,  break,  and  destroy 
the  said  four-wheel  chaise,  and  forced  and  threw  the  said  C.  D. 
and  E.  F.  from  and  out  of  the  said  four-wheel  chaise,  into  and 
upon  the  highway  aforesaid  ;  by  means  whereof  the  said  C.  D. 

>  3  Chitt.  C.  L.  824. 


58  ASSAULTS. 

and  E.  F.  were  severally  grievously  hurt,  bruised,  and  wounded, 

and  put  in  f^reat  danger  of  losing  their  lives ;  and  other  wrongs 
the  said  A.  B.  then  and  there  unlavvfiilly,  wilfully,  and  nialicions- 
ly  did  and  conimittcd,  to  the  great  damage  of  them  the  said 
C.  D.  and  E.  F.,  and  against  the  peace  and  dignity  of  tliB  Com- 
monwealth aforesaid. 

47.  For  an  Assault,  and  drlvini^  a  Cart  arraimt  a  Chaise,  and 
throwing  the  Driver  thcrcj'rojii.^ 

The  jurors  for  said  Commonwealth,  upon  their  oaUi  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and  upon 

one  C.  D.  in  the  public  highway  there  did  make  an  assault,  and 
then  and  there  did  wilfully,  unlawfully,  wantonly,  and  violently 
drive  and  force  a  certain  horse  and  cart,  under  the  care  and 
guidance  of  him  the  said  A.  B.,  to,  at,  and  against  a  certain 
chaise  drawn  by  two  horses,  under  the  care  of  the  said  C.  D., 
and  in  which  the  said  C.  D.  then  was,  in  the  highway  aforesaid. 
By  means  whereof  the  said  C.  D.  was  then  and  there  dirown 
from  and  out  of  the  said  chaise,  to  and  against  the  ground,  and 
was  thereby  greatly  injured  and  bruised,  and  put  in  great  peril 
and  danger  of  his  life  ;  and  other  wrongs  dien  and  diere  did  and 
committed,  to  the  great  damage  of  him  the  said  C.  D.,  and 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

48.  For  an  Assault  and  encouraging  a  Dog  to  bite.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  aforesaid,  laborer,  on  the 

day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

said, in  and  upon  one  C.  1).  an  assault  did  make,  and  him  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse,  and  that 
he  the  said  A.  B.  did  then  and  there  unlawfully  incite,  provoke, 
and  encourage  a  certain  dog,  belonging  to  him  the  said  A.  B., 
him  the  said  C.  D.  then  and  there  to  beset  and  bite  ;  by  means 
whereof  die  same  dog  did  then  and  there  grievously  bite  the  rigl'.t 
leg  of  him  the  said  C.  D.,  whereby  the  said  leg  of  him  the  said 
C.  D.  was  grievously  hurt  and  wounded,  and  his  life  greatly  en- 

1  3  Chitt.  C.  L.  825,  said  to  be  a  recent  form,  settled  by  counsel,  (but  there 
is  no  assault  alleged,  and  no  other  personal  injury  to  (he  prosecutor  stated,  ex- 
cept his  fears  &.c.)  A  second  count  for  a  common  assault  may  be  added,  as 
ante,  precedent  No.  40. 

2  A  Chitt.  Cr.  L.  823  ;  Cro.  C.  C.  145  (6th  Ed.)  ;  Stark.  389  ;   1  Trcm.  240, 
241. 


ASSAULTS.  59 

dangcred  ;  and  other  wrongs  to  the  said  C.  D.  then  and  there 
did  and  committed,  to  the  great  damage  of  him  the  said  C.  D.,  and 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

49.  For  assaulting  a  Woman  pregnant  with  a  quick  Child} 

The  jurors   for  said  Commonwealth,  upon  their  oath  present, 
that  A.  13. ,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  C.  D.,  the  wife  of  one 
E.  F.,  did  make  an  assault ;  she  the  said  C.  D.  being  then  and 
there  pregnant  with  a  (luick  child  ;  and  her  the  said  C.  D.  did 
then  and  there  heat,  wound,  and  abuse,  so  that  her  life  was  there- 
by greatly  endangered  ;  by  reason  whereof  she  the  said  C.  D. 
afterwards,  to  vvil,  on  the  day  of  in  the  same  month 

of  at  B.  aforesaid,  did  bring  forth  the  said  child,  dead ; 

and  odicr  wrongs  to  the  said  C.  D.  then  and  there  did  and  com- 
mitted, to  the  great  damage  of  her  the  said  C.  D.,  and  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

50.  For  riding  over  a  Person  with  a  Ilorse.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  at  B.  aforesaid,  in  the  county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.  an  assault  did  make,  and  him  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse ;  and 
that  the  said  A.  B.  did  then  and  there,  unlawfully,  maliciously, 
and  with  great  force  and  violence,  ride  and  drive  a  certain  horse, 
then  and  there  under  the  guidance  and  command  of  him  the 
said  A.  i>.,  against,  upon,  and  over  the  body  of  the  said  C.  D., 
whereby  the  said  C.  D.  was  then  and  there  grievously  wounded 
and  bruised,  and  his  life  thereby  greatly  endangered  ;  and  other 
wrongs  then  and  there  did  and  committed,  to  the  great  damage 
of  him  the  said  C.  D.,  and  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 


»  3  Chitt.  Cr.  L.  831 ;  Cro.  C.  C.  138  ;  Stark.  366. 

*  3  Chitt.  Cr.  L.  823;  Davis's  Just.  275  (1st  Ed.)  from  which  this  precedent 
is  in  substance  taken. 


GO 


ASSAULTS. 


61.  Fo7-  an  Assault,  and  presenting  a  loaded  Gun,  and  threat- 
ening to  fire  it} 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

said, in  and  upon  one  C.  D.  an  assault  did  make,  [and  him 
the  said  C.  D.  did  then  and  there  beat  and  abuse,]  and  that  he 
the  said  A.  13.  did  then  and  there  level  and  point  at  the  body  of 
him  the  said  C.  D.  a  certain  gun,  which  he  the  said  A.  B.  in 
both  his  hands  then  and  there  had  and  held,  loaded  with  gunpow- 
der and  leaden  balls ;  and  did  then  and  there,  with  the  gun 
aforesaid  so  loaded,  levelled,  and  pointed  at  the  body  of  the  said 
C.  D.,  threaten  to  shoot  the  said  C.  D.,  and  did  thereby  greatly 
terrify  and  frighten  the  said  C.  D.  and  endanger  his  life ;  and 
other  wrongs  dien  and  there  did  and  committed,  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

52.  For  an   Assault,  and  forcibly  taking  away  a  Receipt  for  a 

Deht.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  ibrce  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D.  an 
assault  did  make,  and  him  the  said  C.  D.  did  beat  and  ill  treat ; 
and  that  he  the  said  A.  B.  then  and  there  unlawfully,  violently, 
and  injuriously  did  seize  and  take  from  and  out  of  the  custody 
of  him  the  said  C.  D.,  and  against  his  will  and  consent,  a  certain 
receipt,  [fiere  describe  the  receipt  as  accurately  as  possible,']  and 
the  same  receipt  the  said  A.  B.  then  and  there  unlawfully  and 
wilfully  did  withhold  from  the  said  C.  D.,  and  keep  in  his  the 
said  A.  B's  possession  ;  and  other  wrongs  then  and  there  did,  to 
the  great  damage  of  him  the  said  C.  D.,  and  against  the  peace 
and  dignity  of  the  Commonwealth  aforesaid.^ 

1  There  is  a  similar  precedent  in  3  Chitt.  C.  L.  826.  It  is  therein  alleged, 
that  defendant  "  beat  and  wounded  prosecutor  so  that  his  life  was  greatly  de- 
spaired of."  The  offence,  as  described  in  the  close  of  Chitty's  precedent,  is 
nothing  more  than  an  assault  with  a  loaded  gun.  See  a  similar  precedent  in  4 
Went.  70. 

*  3  Chitt.  Cr.  L.  827,  refers  (o  a  similar  precedent  in  Went.  437. 

3  If  the  receipt  had  been  taken  by  the  consent  of  the  owner,  but  had  been 
fraudulently  obtained,  with  a  design,  existing  at  the  time,  of  withholding  and 
detaining  it,  it  would  have  amounted  to  a  larceny. 


ASSAULTS.  61 


53.  For  a  violent  Assault  and  wounding  Prosecutor,  with  a 

Bayonet.^ 

The   jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  aforesaid, 

in  the  countv  aforesaid,  in  and  upon  one  C.  D.  violently,  wickedly, 
and  maliciously  did  make  an  assault,  and  him  the  said  C.  D.  did 
then  and  there  beat,  wound,  and  ill  treat,  so  that  his  life  was  then 
and  there  greatly  endangered,  and  that  the  said  A.  B.,  with  a 
certain  drawn  weapon  called  a  bayonet,  which  was  then  and 
there  affixed  to  a  certain  musket,  which  he  the  said  A.  B.  in 
both  his  hands  then  and  there  had  and  held,  in  and  upon  the 
said  C.  D.  did  make  an  assault,  and  did  give  to  him  the  said 
C.  D.  one  dangerous  and  grievous  stroke  and  wound,  in  and 
upon  the  left  side  of  the  head  of  him  the  said  C.  D.,  of  the 
length  of  one  inch,  and  of  the  depth  of  two  inches ;  by  means 
whereof  the  said  C.  D.  was  then  and  there  put  in  great  danger 
and  peril  of  his  life,  and  did  dien  and  there  labor  under  great 
pain  and  anguish  for  the  space  of  days  ;  and  other  wrongs 
then  and  there  did  and  committed,  to  die  great  damage  of  him 
the  said  C.  D.,  and  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 

54.  For  an  Assault  and  False  Imprisonment.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  C.  1).  did  make  an 
assault,  and  him  the  said  C.  D.  did  then  and  there  beat,  abuse, 
and  ill  treat ;  and  him  the  said  C.  D.  then  and  there  unlawfully 
and  injuriously,  against  the  will  and  without  the  consent  of  him 
the  said  C.  D.,  and  without  any  legal  warrant,  authority,  or  jus- 
tifiable cause  whatever,  did  imprison,  detain,  and  hold  in  duress 
for  die  space  of  hours  then  next  following  ;  and  other  wrongs 
and  injuries  then  and  tiiere  did  and  committed,  to  the  great 
damage  of  him  the  said  C.  D.,  and  against  the  peace  and  dignity 
of  the  Commonwealth  aforesaid. 

1  3  Cliitt.  Cr.  L.  S2G.  This  precedent  is  said  to  have  been  taken  from  Mr. 
J.  Asher's  paper  book,  vol.  24,  p.  103.  I  have  rejected  what  I  consider  the 
superfluous  matter  m  this  precedent. 

2  Stark.  Cr.  PI.  3ri5,  3i)9  ;  Cro.  C.  C.  135  (6th  Ed.)  The  allegation  in  both 
these  precedents,  "  that  his  life  was  greatly  despaired  of,"  is  omitted. 

/ 

/ 


C'2  ASSAULTS. 


55.  For  the  same  Offence,  and  obtaining  Money  for  discharging 
the  Prosecutor.^ 

The  jurors  Sec.  [the  same  as  in  the  next  preceding  precedent  ; 
then  add]  and  until  he  the  said  C.  D.  had  paid  him  the  said 
A.  B.  the  snm  of  dollars,  of  the  monies  of  him  the  said 
C.  D.,  for  his  enlargement ;   and  other  wrongs  &ie. 

56.  For  the  same,  and  for  obtaining  a  Note  for  discharging 
the  Prosecutor. 

The  jurors  Sec.  [as  in  precedent  J\''o.  54;  then  add]  and  until 
he  the  said  C.  D.,  for  his  delivery  from  said  imjjrisonment,  had 
signed  and  given  to  the  said  A.  B.  a  note  under  the  hand  of  the 
said  C.  D.,  wherehy  he  the  said  C.  D.  promised  to  pay  to  the 
said  A.  B.  the  sum  of  twenty  dollars  ;  and  other  wrongs  &ic.^ 

57.  For  entering  a  public  House,  making  a  JVoise  therein,  (as- 
saulting.) and  threatening  the  Owner  ivithbodily  harm.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.J  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

said, unlawfully  did  enter  into  the  dwelling-house  of  one  C.  D. 
there  situate,  (the  same  being  licensed  according  to  law  as  a 
tavern,  and  in  which  divers  citizens  of  the  said  Commonwealth 
were  then  and  there  peaceably  met  and  assembled,)  with  inten- 
tion to  disturb  the  peace  of  the  said  Commonwealth  ;  and  that 
the  said  A.  B.,  so  being  in  the  said  dwelling-house,  did  then  and 
there,  unlawfully,  wilfully,  injuriously,  and  obstinately,  remain 
there  for  the  space  of  one  hour  and  more,  without  the  license 
and  against  the  will  of  the  said  C.  D.,  and  did  then  and  there 
unlawfully,  obstinately,  and  injuriously  refuse  to  depart  and  go 
out  of  the  said  dwelling-house,  upon  the  reasonable  request  of 
the  said  C.  D.,  then  and  there  made  to  him  for  that  purpose  ; 
and  that  the  said  A.  B.  did  then  and  there  unlawfully,  vehe- 
mently, and  turbulently  menace  and  threaten  great  bodily  harm 
to  the  said  C.  D.,  then  and  there  being  in  his  said  dwelling- 
house,  and  did  then  and  there  make  a  great  noise,  in  disturbance 
of  the  peace  of  said  Commonwealth,  and  greatly  misbehave 
himself  in  the  same  dwelling-house ;  against  the  peace  and 
dignity  of  said  Commonwealth.  [Md  a  count  for  a  common  as- 
sault.] 

'  Stark.  385.  »  Ibid.  386.  ^  stark.  Cr.  PI.  396. 


ASSAULTS  UPON  OFFICERS.  63 


ASSAULTS  UPON  OFFICERS. 

58.  For  an  Assault  upon  a   Constable,  in  the  execution  of  his 

Office."- 

The  jurors  of  said  Commoinvcalth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  yeoman,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  afore- 

said, in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D., 
he  the  said  C.  D.  being  then  and  there  a  constable  of  the  said 
town  of  legally  authorized  and  duly  qualified  to  discharge 

and  |)erform  the  duties  of  said  ofllce,  and  being  then  and  there 
in  the  due  and  lawful  exercise  of  the  same,  did  make  an  assault, 
and  him  the  said  C.  D.  did  then  and  there  beat,  abuse,  and  ill 
treat ;  and  in  the  due  and  lawful  execution  of  his  said  office, 
did  then  and  there  unlawfully  and  knowingly  obstruct,  hinder, 
and  oppose  ;  and  other  wrongs  then  and  there  did  and  commit- 
ted, to  the  great  damage  of  him  the  said  C.  D.,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

59.  For  an  Assault  vpon  a  Collector  of  a  Turnpike  Corpora- 

tion in  the  execution  of  his  Office.^ 

The  jurors  for  said  Connnonwealth  of  Massachusetts,   upon 
their    oalh   present,  that  A.  15.,  of  B.,  in   the   county  of 
yeoman,  on   the  day  of  now  last   past,  with   force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  C.  D.,  he  the  said  C.  D.  being  then  and  there  one  of  the 
collectors  and  receivers  of  the  monies  and  toll  payable 'by  virtue 
of  a  certain  act  or  law  of  this  Commonwcalih,  made  and  passed 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
intiiled  "  an  act,"  [Aere  iujert  the  title  of  the  act  of  incorporation 
correctly,~\  and  being  then  and  tl)ere  in  the  due  and  lawful  exe- 
cution of  the  said  office  of  collector  and  receiver  of  such  mon- 
ies and  toll,  did  make  an  assault,  and  him  the  said  C.  D.  did 
then  and  there  beat,  wound,  and  abuse  ;  and  other  wrongs  then 
and  there  did  and  committed,  to  the  great  damage  of  him  the 
said  C.  D.,  and  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

»  See  similar  precedents,  do.  C.  C.  134,  (Gth  Ed.)  ;  Sta/k.  385;  3  Chitt. 
832.  This  piecedent  is  more  full  than  those  above  referred  to.  A  second  count 
for  a  common  assault  may  be  added.     See  note  to  precedent  No.  G\,  post, 

*  See  similar  precedents  in  3  Chitt.  832;  Stark.  387;  Cro.  C.  C.  139, 
(6th  Ed.) 


C4  ASSAULTS  UPON  OFFICERS. 


GO.  For  an  Assault  on  a  Dcptify  Gaoler,  in  the  execution  of  his 

Office.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  ill  the   county  of  laborer,  on 

with  force  and  arms,  at  aforesaid,  in  the  county  aforesaid, 

in  and  upon  one  C.  D.,  he  the  said  C.  D.  then  and  there  being 
a  deputy  keeper  of  the  Comnionwealtli's  gaol  in  the  said  town  of 
and  county  aforesaid,  and  then  and  there  having  the 
custody  of  divers  persons  lawfully  confined  as  prisoners  in  said 
gaol,  and  being  then  and  there  in  the  lawful  execution  of  his  said 
office  and  duty  of  deputy  keeper  of  said  gaol,  did  make  an 
assaidt,  and  him  the  said  C.  D.  did  then  and  there  beat,  wound, 
and  abuse  ;  and  other  wrongs  to  the  said  C.  D.  then  and  there 
did  and  committed  ;  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid.     (Add  a  count  for  a  common  assault.) 

Gl.  For  an  Assault  upon  a  Minister  of  the  Gospel,  ivherehy  he 
tvas  rendered  incapable  of  discharging  his  Duty.^ 

The  jurors  for   said   Commonwealth,  upon  their  oath  present, 
that  A.B.,  of  in  the  county  of  yeoman,  on 

at  in   the  county  aforesaid,   with  force  and  arms,  in  and 

upon  one  C.  D.,  being  then  and  there  a  settled  and  ordained 
minister  of  the  gospel,  in  the  said  town  of  B.,  an  assault  did 
make,  and  him  the  said  C.  D.  did  then  and  there  beat,  wound, 
and  ill  treat ;  and  that  he  the  said  A  B.,  with  both  his  fists,  did 
strike  divers  grievous  and  dangerous  blows  upon  the  head,  face, 
and  other  parts  of  the  body  of  him  the  said  C.  D.,  whereby  he 
was  giievotisly  and  dangerously  wounded  and  bruised  ;  by 
means  whereof  the  said  C.  D.  became  sick  and  debilitated  for 
the  space  of  days  next  ensuing,*  and  during  all  that  time 

suffered  great  bodily  pain  and  anguish  ;  and  was  also  thereby 
prevented  from,  and  rendered  incapable,  during  all  the  time  last 
mentioned,  of  officiating  in,  and  performing  the  duties  of  his 
office   and  function,  as  a   settled   minister  of  the  gospel  in  the 


1  Stark.  398. 

2  3  Chitt.  Cr.  L.  827,  828 ;  Cro.  C.  A.  266,  407, 

These  forms  may  be  adopted,  mutatis  mutandis,  for  assaults  upon  all  other 
officers,  as  sheriffs,  coroners,  &c.  Upon  all  indictments  for  assaults  upon  offi- 
cers, the  party  may  be  found  not  guilty  of  assaulting  the  officer  in  the  execution 
of  his  office,  but  guilty  of  a  common  assault,  according  to  the  nature  of  the 
evidence. 


ASSAULTS,  WITH  A  FELONIOUS  INTENT.  C5 

said  town  of  and  other  wrongs   then  and  there  did  and 

committed,  to  the  great  damage  of  him  the  said  C.  D.,  and 
agn.nst  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 
(Ml  a  second  count,  leaving  out  the  allegation  thai  he  was  pre^ 
vented  from  ojhcmtmg,  ^-c,  and  a  third  count  for  a  common 
assault  and  battery.)  ''  ^"""'""t 


ASSAULTS,  WITH  A  FELONIOUS  INTENT. 

C2.  For  an  Assault,  with  intent  to  maim} 

The  jijrors  for  said  Commonwealth,  upon  their  oath  present, 

tliat  A.   B.,  ol  m  the  county  of  yeoman,   on    the 

Clay  o  now  last   past,  with  force  and  arms,  at  B. 

aforesaid,  ,n  the  county  aforesaid,  in  and  upon   the  body  of  one 

C.  U.,  did  make  an  assault,  he  the  said   A.  B.   being  then  and 

here  armed  w.th  a  dangerous   weapon,  called  a  knifef  which  he 

the   said   A.  B.  m   ns  nglu  hand  then  and  there  had  and  held, 

vvwth  an  n.tention   Inm  the  said   C.  D.  with  set  purposes  and 

afore  bought  mal.ce   unlawfully  to  maim   and  disfigure,   by  un- 

awfully  cutting  off  the   left   ear  of  him  the   said  C.  D.,  against 

he  peace  of  said   Commonweahh,  and   contrary  to  the  fonn  of 

the  statute  in  such  case  made  and  provided. 

63.  For   a  felonious    Assault,   with  a   drawn  Sword,  with 
intent  to  murder? 

The  jurors  for  said   Commonwealth,  upon  their  oath  present, 
that  A.  B,  of  ,n   the  county   of  laborer,  on 


Thjs  precedent.,  drawn  upon  the  fourth  and  fifth  sections  of  the  statute  of 
Massachusetts  of  1804.  c.  123.  See  also  Com>nnnu:ealth  v.  mu^ell  et  al., 
7Mass.  R.  245  m  ^h.ch  it  is  decided  that  Mnyhem  is  no  felony,  either  at  com- 
mon law  or  by  the  above  menUoned  statute.  It  is  not,  therefore,  by  that  stat- 
ute,  a  felonious  assault. 

This  precedent  n,ay  be  used  for  all  the  dilTerent  species  of  Maiming,  making 
tbt?:  ^^:  "  '''  '-'  -  "  --=^  -'  -  ^-.>.  .<  euttSg  otr  o? 

The  party  may  be  acquitted  upon  thi,  indictment  of  the  felonious  intent,  and 
found  guilty  of  a  common  assault.     This  form  will,  of  course,  answer  in  all 
9 


G6  ASSAULTS,  WITH  A  FELONIOUS  INTENT. 

with   rorce   and  arms,   at  in   the  county  aforesaid,  in  and 

upon  one  C.  D.,  with  a  dangerous  weapon,  to  wit,  with  a  drawn 
sword,  with  which  he  the  said  A.  13.  was  then  and  there  armed, 
and  which  lie  the  said  A.  B.  in  his  right  liand  then  and  there 
had  and  held,  did  make  an  assault,  with  an  intention  him  the 
said  C.  D.,  with  the  drawn  sword  aforesaid,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  to  kill  and 
murder  ;  ngaiust  the  peace  of  said  Comtnouweallh,  and  contra- 
ry to  the  form  of  the  statute  in  such  case  made  and  provided. 

64.  For  a  felonious  Assault^  and  casting  into  a  Pond,  with  in- 
tent to  suffocate  and  drown} 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  lahorcr,   on 

with  force   and   arms,  at  in  the   county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.,  with  a  dangerous  weapon,  to  wit, 
with  a  large  stick,  which  he  the  said  A.  B.  in  both  his  hands 
then  and  there  had  and  held,  did  make  an  assault,  and  him  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse ;  and  that 
he  the  said  A.  B.,  with  both  his  hands,  did  then  and  there  un- 
lawfully, violently,  and  maliciously  cast,  push,  and  throw  the 
said  C.  D.  ipto  a  certain  pond  there  situate  and  being,  wherein 
there  Vv'as  a  large  quantity  of  water,  and  did  then  and  there 
keep,  press  down,  and  confine  the  said  C  D.  in  and  under  the 
said  water,  for  the  space  of  five  minutes,  with  intention  him  the 
said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his  mal- 
ice aforethought,  to  suffocate  and  drown  in  the  said  water  ;  and 
him  the  said  C.  D  ,  by  means  thereof,  w'ilfully,  feloniously,  and 
of  his  malice  aforethought,  to  kill  and  murder;  and  other 
wrongs  to  the  said  C.  D.  then  and  there  did,  to  the  great  dam- 
age of  him  the  said  C.  D. ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

65.  For  a  felonious  Assault,  with  intent  to  commit  a  Rape.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on 


other  cases  of  felonious  assault  vpith  dangerous  weapons,  varying  the  de- 
scription of  the  weapon,  according  to  the  fact  ;  as,  "  with  a  certain  dange- 
rous weapon   called  a  pistol,  loaded  with  gun-powder  and  leaden  bullets." 

1  See  other  precedents,  3  Chitt.  Cr.  L.  829 ;  Stark.  392. 

*  See  similar  precedent,  Cro.  C.  C.  136,  (6th  Ed.) 


ASSAULTS,  WITH  A  FELONIOUS  INTENT.  67 

with   force   and   arms,   at  in   the  county  aforesaitl,  in  and 

upon  the  body  of  one  C.  D.  did  make  an  assault,  and  her  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse,  with  in- 
tent iicr  the  said  C.  D.  then  and  there  feloniously  to  ravish  and 
carnally  krlow,  bij  forcc,^  and  against  her  will  ;  against  the  peace 
of  said  CominonuxMlih,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

CO.  For  a  felonious  Assault,  ivith  latent  cnrnalhj  to  know  and 
abuse  a  Female  Child  under  the  Age  of  ten  Years. 

The   jurors  for  said  Commonwealth,  upon  their  oath   present, 
that  A.  ii.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  afore- 

said, in  the  county  aforesaid,  in  and  upon  one  C.  D.,  a  woman 
child  under  the  age  of  ten  years,  to  wit,  of  the  age  of  eight 
years,  did  make  an  assault,  and  her  the  said  C.  D.  did  then  and 
there  beat,  abuse,  and  ill  treat,  with  intent  her  the  said  C.  D. 
wickedly  and  feloniously  to  carnally  know  and  abuse  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

C7.  For  a  feloniom  Assault  upon  a  Woman,  hy  tico   Persons, 
with  intent  that  one  of  them  should  ravish  herr 

The  jurors   for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.  and  C.  D.,  both  of  in  the  county  aforesaid,  la- 

borers, on  the  day  of  now  last  past,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  the 
body  of  one  E.  F.  did  make  an  assault,  and  her  the  said  E.  F. 
did  then  and  there  beat,  wound,  and  abuse,  with  an  intent  that 
he  the  said  C.  D.  should  then  and  there  feloniously  ravish  and 
carnally  know  her  the  said  E.  F.  by  force  and  against  her  will ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


'  The  words  "  htj  force"  are  not  used  in  the  English  precedents,  but  they  are 
a  part  of  the  definition  of  the  crime.  Hawkins's  definition  is  "  an  ofTcnce  in 
having  carnal  knowledge  of  a  woman,  by  force  and  against  her  will."  Hawk. 
B.  l,c.  41,  §  I.  The  statute  of  Massachusetts  1805,.  c.  %7,  adopts  the  same 
definition. 

«  Cro.  C.  C.  137,  (6th  Ed.) 


68  ASSAULTS,  WITH  A  FELONIOUS  INTENT. 

68.  For  on  Assault  u'ith  intent  to  roh} 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  13.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  C.  D.,  with  a  certain 
dangerous  weapon  called  a  pistol,  then  and  there  loaded  wiih 
gunpowder  and  leaden  bullets,  with  which  he  the  said  A.  B.  was 
then  and  there  armed,  and  which  he  the  said  A.  B.  in  his  right 
hand  then  and  there  had  and  held,  and  also  with  other  actual 
violence,  did  make  an  assault,  with  intent  the  monies,  goods,  and 
chattels  of  him  the  said  C.  D.,  from  the  person  and  against  the 
will  of  him  the  said  C.  D.,  feloniously  and  by  force  and  violence, 
and  by  assault  and  putting  him  in  bodily  fear  and  danger  of  his 
life,  to  steal,  take,  and  rob ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

69.  For  an  Assault  upon  a   Boy,  with  Intent  to  commit  the 
Crime  against  JVature.~ 

The  jin-ors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  with  force  and  arras,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D.,  a 
male  child,  of  the  age  of  eight  years,  did  make  an  assault,  and 
him  the  said  C.  D.  did  then  and  there  beat,  wound,  and  abuse, 
with  an  intent  tlie  horrid,  detestable,  and  sodomitical  crime 
against  the  order  of  nature,  with  him  the  said  C.  D.  then  and 
there  feloniously  to  do  and  commit,  by  having  a  venerial  affair 
with  the  said  C.  D.,  and  by  then  and  there  having  carnal  know- 
ledge of  the  body  of  him  the  said  C  D. ;  against  the  peace  of 
said  Commonwealth,  and  against  the  form  of  the  statute  in  such 
case  made  and  provided. 

70.  For  an  Assault,  with  Intent  to  steal  from  the  Person.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  June  now  last  past,  with  force  and  arms,  at  B.  aforesaid, 

* 

1  Mass.  Laws,  stat.  1804,  c.  143,  §  9.  There  is  a  precedent  in  Starkie,  and 
another  in  Cro.  C.  C.  for  this  offence,  each  of  which  has  been  decided  to  be 
defective.     See  Stark.  404,  and  Cro.  C.  C.  152, 153,  note  (a.) 

»  Altered  from  Stark.  387,  409. 

3  Mass.  Stat.  1804,  c.  143,  §  8,  9.' 


BARRATRY.  (JQ 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D. 
wilh  a  dangerous  weapon,  to  wit,  with  a  pistol,  did  make  an  as- 
sault, and  hiui  the  said  C.  D.  did  then  and  there  beat,  wound 
and  abuse  w-^ith  intent  the  monies,  goods,  and  chattels  of  him  the' 
said  C.  D.,  from  the  person  of  him  the  said  C.  D.,  openly  and 
violently  [o;  pnoihj  and  fraudulently,  as  the  case  may  be]  to 
stea  ,  take,  and  carry  away  ;  against  the  peace  of  said  Common- 
wca  ih,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


BARRATRY. 

7 1 .  Indictment  for  being  a  common  Barrator.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  R.,  of  in  the   county  aforesaid,  yeoman,  on  the 

f^y  o^  in  t^'c  year  of  our  Lord  one  thousand  eight 

hundred  and  twenty,  and  on  divers  other  days  and  times,  as  well 
before  as  afterwards,  was,  and  yet  is,  a  common  barrator,^  and 
that  he  the  said  A.  B.,  on   the  said  day  of  and  on 

divers  other  days  and  times,  as  well   before  as  afterwards,  at 

aforesaid,  in  the  county  aforesaid,  divers  quarrels,  strifes, 
suits,  and  controversies,  «imong  the  honest  and  quiet  citizens  of 
the  said  Commonwealth,  then  and  there  did  move,  procure,  stir 
up,  and  excite  ;  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

72.  Against  an  Attorney,  for  suing  a  Person   in  the  JVame  of 

one  who  was  ignorant  of  and  had  no  Interest  in  the  Suit.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 

that  A.  B.,  of  in  the  county  aforesaid,  gentleman,  on  the 

day  of  in  the  year  of  at  B.,   in  the  county 

aforesaid,   being   then   an   attorney  of  the    Court   of  Conmion 

Fleas    ior  the  said  county  of  duly  admitted,  sworn,  and 

authorized  to  practise  as  an  attorney  of  said  court,  had  in    his 

1  2  Chitt.  113  ;  Trem.  P.  C.  224;  Cro.  C.  C.  178,  (6th  Ed) 

^  These  words  are  absolutely  necessary,  and  cannot  be  supplied  by  others  of 

(he  same  signification.    3  Chitt.  C.  L.  234,  note  (q) ;  6  Mod.  311 ;  2  Saunders, 

308,  note  (1) ;  1  Sid.  282. 

'  See  4  Black.  Com.  134.     Blackstone  refers  to  no  authority  for  the  law  laid  " 

down  in  the  passage  here  quoted. 


70  BARRF.TnV. 

custody  and  possession  a  certain  promissory  note  of  hand,  bear- 
in"-  date  he.  [here  insert  n  copy,  or  the  substance  of  the  note,'] 
an^d  that  he  the  said  A.  B.  did  then  and  there,  unlawfully  and 
fratuhilently,  and  with  a  design  to  injure  and  oppress  one  C.  D., 
commence  an  action  at  law  upon  the  aforesaid  promissory  note 
of  hand,  to  the  Court  of  Common  Pleas  then  next  to  be  holden 
at  within  and  for  the  said  county  of  on  the 

Tuesday  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  against   the   said  C.  D.,   as  the  maker  of 

said  note,  in  the  name  of  one  E.  F.,  of  he.  whhout  the  know- 
ledge, privity,  or  consent  of  him  the  said  E.  F.,  and  without 
any  power  or  authority  from  him  therefor  ;  he  the  said  E.  F. 
then  and  there  having  no  interest,  property,  or  concern  in  the 
said  note,  either  as  endorser  thereof,  or  in  any  other  way  or 
manner  whatever  ;  and  he  the  said  A.  B.  the  aforesaid  action, 
so  as  aforesaid  unlawfully  and  fraudulently  commenced,  did  un- 
lawfully, frandulently,  and  vexationsly  prosecute  to  final  judg- 
ment and  execution,  with  intent  iiim  the  said  CD.  to  injure, 
harass,  and  oppress,  and  also  with  intent  unlawfully  and  op- 
pressively to  inhance  and  augment  the  cost  to  be  taxed  for  the 
benefit  of  him  the  said  A.  B.  in  the  suit  and  action  aforesaid, 
in  violation  of  his  duly  as  an  attorney  of  the  said  Court  of  Com- 
mon Pleas,  to  die  great  injury  and  oi)pression  of  the  said  C.  D., 
and  against  the  peace  and  dignity  of  the  Commonwealth  afore- 
said.^ 

73.  Against  an  Attorney  for  advancing  Monetj  to  procure  him- 
self to  he  retained,  in  the  Collection  of  a  Note.- 

The  iurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  he,  on  he,  at  &c.,  being  then  an  attorney  of 
the  Court  of  Common   Pleas  for  the  said  county  of  duly 

admitted,  sworn,  and  authorized  to  practise  as  as  attorney  of 
said  court,  did  then  and  there  loan  and  advance  to  one  C.  D. 
the  sum  of  dollars,  with  intent  thereby  to  procure  himself 


1  Judgment  was  rendered  at  nisi  prius  upon  an  indictment,  from  which  this 
precedent  is  taken,  in  the  Supreme  Judicial  Court  of  Massachusetts,  in  the 
county  of  Suffolk. 

2  On  the  statute  of  Massachusetts  of  1811,  c.  62,  prohibiting  attornies  and 
other  officers  of  the  government,  magistrates,  sheriffs,  &c.  from  purchasing 
notes  and  other  demands,  for  the  purpose  of  making  gains  in  the  collection 
thereof.  This  statute  consists  of  but  one  section  ;  but  it  creates  (as  it  is  said) 
more  than  twenty  distinct  offences  !  The  penalties  are  to  be  recovered  by  in- 
dictment, "  or  by  action." 


BASTARD.  71 

to  be  retained  as  an  attorney  in  the  collection  of  a  certain  note 
of  hand  hereafter  mentioned,  and  widi  intent  therebv  to  procure 
and  obtain  of  him  the  said  C.  D.  a  certain  promissory  note  for 
the  payment  of  money,  made  and  given  by  one  E.  F.  to  [here 
set  forth  the  note  in  substance  and  to  the  purport  of  the  same,'] 
for  the  intent  and  purpose  of  making  to  himself  gain  and  profit, 
from  the  writs  and  fees  arising  in  the  collecting  thereof,  by  a 
suit  at  law ;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 


BASTARD. 


74.  Indictment  against  a  Woman  for  concealing  Iter  Pregnancy. ^ 

The  jurors  for  said  Commonwealth,  upoii  their  oath   present, 
that  A.  B.,   of  in   the   county  of  spinster,  on   the 

day  of  now  last   past,   at  aforesaid,  in  the 

county  aforesaid,  being  then  and  there  pregnant  with  a  male^ 
child,  did  then  and  there  conceal  her  pregnancy,  and  was  then 
and  Uiere  willingly  delivered  in  secret  by  herself  of  the  said 
m,ak  child,  the  issue  of  her  body  ;  which  child,  by  the  laws  of 
this  Commonwealth,  was  a  bastard  ;  against  the  peace  of  said 
Commonweahh,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

75.  .^gainst  a  Woman  for  concealing  the  Death  of  a    Bastard 

Child. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county   of  spinster,  on   the 

day  of  now  last  past,   at  B.,  in  the  county  afore- 

said, being  then  and  there  pregnant  with  a  male  bastard  child, 
did  bring  forth  the  said  child,  of  the  body  of  her  the  said  A.  B., 
and  was  then  and  there  willingly  dehvered  thereof,  alone,^  and 


'  This  and  the  following  precedent  are  drawn  upon  the  statute  of  Massachu- 
setts of  17S4,  c.  42,  §  1.  They  are  precisely  the  same  as  have  been  adopted 
and  used  in  the  Supreme  Court  of  Massachusetts  since  the  passing  of  the 
statute. 

*  The  sex  is  material  to  be  averred  ;  Stark.  38.3,  note  (f ) 

2  This  word  i?  not  necessaiy ;  Stark.  383,  note  (h.)  But  the  words  "Id 
secret  by  herself"  are  made  necessary  by  the  first  section  of  the  statute  last 
before  referred  to. 


72  BLASPHEMY. 

in  secret  by  herself;  which  said  child,  so  bcinj^  born,  and  so 
bein^  the  issue  of  the  body  of  the  said  A.  B.,  if  it  were  born 
alive,  was,  by  the  laws  of  this  Commonwealth,  a  bastard  ;  and 
that  she  the  said  A.  B.  did  then  and  there  endeavour,  privately 
by  herself,  [or-  by  the  procurement  of  one  C.  D.,  if  such  tvere  the 
fact,]  to  conceal  the  death  of  said  bastard  child,  the  said  issue  of 
her  body,  so  that  it  might  not  come  to  light,  whether  it  were 
born  alive  or  not,  or  whether  it  were  murdered  or  not ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

Bawdy-House. — See  "  Nuisance." 

Bestiality. — See  "  Sodomy." 

Bigamy. — See  "  Polygamy." 

MuRDEji  OF  Bastakd  CHILDREN. — See  "  Murdcr,"  JJOSt. 


BLASPHEMY. 


76.  For  Blasphemi/,  by  blaspheming  the  holy  JVame  of  God} 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  yeoman,  on  the 

day  of  now  last  past,  at  B.  aforesaid,  in  the  coun- 

ty aforesaid,  being  a  person  of  an  immoral  and  irreligious  mind 
and  disposition,  and  intending  the  holy  name  of  God  to  dishonor 
and  blaspheme,  did  then  and  there  wilfully  commit  the  heinous 
crime  of  blasphemy,  and  did  wilfully  blaspheme  the  holy  name 
of  God,  by  denying,  cursing,  and  contumeliously  reproaching  God, 
his  creation,  government,  and  final  judging  of  the  world  ;  that  is 
to  say,  the  said  A.  B.,  then  and  there,  in  the  presence  and  hear- 
ing of  divers  good  and  worthy  citizens  of  the  said  Common- 
wealth, did  wilfully  and  blasphemously  speak,  pronounce,  utter, 
and  publish,  these  profane  and  blasphemous  words  following,^  to 

1  This  and  the  three  following  precedents  are  original  by  the  author,  and  are 
drawn  upon  the  statute  of  Massachusetts  of  1782,  c.  8,  and  are  in  the  form  of 
the  indictments  used  in  the  Supreme  Court  of  Massachusetts,  See  prece- 
dents for  blasphemy  at  common  law,  and  the  note  to  the  same,  Post. 

*  The  blasphemous  words  must  be  set  forth,  that  the  Court  may  judge 
whether  they  are  blasphemous  or  not.    1  Stark.  114  ;  Str.  686. 


RLASPHEsnr.  73 

wit,  [here  insert  the  words  spoken  and  published,  verbatim,  and 
with  proper  inuendoes,  if  the  tvords  require  tV;]  in  manifest  con- 
tempt of  religion,  good  government,  good  morals,  and  good  man- 
ners ;  against  the  peace  of  said  Conmionwealtli,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

77.  For  Blasphemy,  by  cursing  and  reproaching  Jesv^  Christ. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  aforesaid,  laborer,  being  a 

person  of  an  immoral  and  irreligious  mind  and  disposition,  and 
intending  the  Christian  religion  to  dishonor,  defame,  and  vilify, 
on  at  in  the   county  aforesaid,  did  wilfully  commit 

the  heinous  crime  of  blasphemy,  by  wilfully  cursing  and  re- 
proaching Jesus  Christ ;  that  is  to  say,  the  said  A.  B.  then  and 
there,  in  the  presence  and  Ircaring  of  divers  good  and  worthy 
citizens  of  said  Coinmonwcahh,  did  wilfully  and  blasphemously 
speak,  pronounce,  utter,  and  publish  these  profane  and  blasphe- 
mous words  following,  to  wit,  [here  insert  the  words  spoken,  ver- 
batim, ivith  proper  inuendoes,  if  the  words  require  it  ;^  to  the 
great  dishonor  of  our  Lord  and  Saviour  Jesus  Christ  and  of  his 
holy  religion,  in  manifest  contempt  of  good  government,  good 
morals,  and  good  manners  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

78.  For  Blasphemy,  by  cursing  and  reproaching  the  Holy  Ghost. 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  being  a 

person  of  an  immoral  and  irreligious  mind  and  disposition,  and 
intending  the  Christian  religion  to  revile  and  bring  into  contempt, 
on  the  day  of  at  B.  aforesaid,  in  the  county  afore- 

said, did  wilfully  commit  the  heinous  crime  of  blasphemy,  by 
wilfully  cursing  and  reproaching  the  Holy  Ghost ;  that  is  to  say, 
the  said  A.  B.  then  and  there,  in  the  presence  and  hearing  of 
divers  good  and  worthy  citizens  of  said  Commonwealth,  did 
wilfully,  profanely,  and  blasphemously  speak,  utter,  publish,  and 
pronounce,  these  prcfane  and  blasphemous  words  following,  to 
wit,  [here  insert  the  words  spoken,  verbatim,  with  proper  inuen- 
does, if  the  words  require  it  ;'\  to  the  great  dishonor  of  religion, 
good  morals,  and  good  manners  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

10 


74  ulasphemy. 


79.  For  Blasphcjtii/,  by  cursing  mid  contumdioushj  reproaching 
the  Holy  Scrijjtures. 

The  jurors  &c.,  upon  their  oath  jjresent,  that  A.  B.,  of 
iti  tlie  county   of  yeoman,  on  the  clay  of 

at  B.  aforesaid,  in  the  county  aforesaid,  being  a  person  of  an 
immoral  and  irreligious  mind  and  disposition,  and  intending  the 
holy  Word  of  God  to  bring  into  contempt,  reproach,  and  ridicule, 
did  commit  the  heinous  crime  of  blasphemy,  by  wilfully  cursing, 
and  contumeliously  reproaching  the  holy  Word  of  God  ;  that  is 
to  say,  the  canonical  scri|)tures  contained  in  the  books  of  the  Old 
and  New  Testaments,  and  by  exposing  them  to  contempt  and 
ridicule,  which  books  are  as  follows,  to  wit,  [here  insert  the  names 
of  the  books  from  Genesis  to  Revelations  ;  ]  that  is  to  say,  the  said 
A.  B.  then  and  there,  in  the  presence  and  hearing  of  divers  good 
and  worthy  citizens  of  said  Commonwcalih,  did  wilfully,  profane- 
ly, and  b  asphemously,  speak,  pronounce,  utter,  and  publish, 
these  profane  and  blaspliemous  words  following,  to  wit,  \Jiere  in- 
sert the  ivords  spoken,  verbatim,  with  proper  imiendoes,  if  the 
words  require  it ;]  to  the  great  dishonor  and  manifest  injury  of 
religion,  good  morals,  and  good  manners;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
case  made  and  provided. 

80.  For  Blasphemy ;  at  Common  Law} 
The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  B.,  in 

'  This  precedent  is  taken  from  Chitt.  C.  L.  14,  and  is,  in  substance,  the  same 
as  the  precedent  in  Trem.  P.  C.  225,'22G.  There  are  no  similar  precedents  io 
Starkie  or  the  Cro.  C.  C.  There  are  some  variances  in  this  precedent  from 
that  in  Treraaine,  from  which  it  was  probably  copied.  In  Tremaine's  precedent 
it  is  alleged,  that  defendant's  intent  was  to  blaspheme  "  God,  and  our  Lord 
Jesus  Christ,  the  Saviour  of  the  world,  and  the  Holy  Ghost."  In  Chitty's 
precedent,  the  "  Holy  Ghost "  is  left  out.  In  the  former,  the  words  true 
Christian  religion  are  used.     In  the  latter,  the  word  true  is  omitted. 

Blasphemy  against  God  and  religion  is  indictable  at  common  law.  1  East, 
P.  C.  3  ;  2  Chit.  C.  L.  14,  note  (a)  ;  and  Hawk.  b.  1,  c.  5,  §  1,  2.  In  the  case 
of  The  People  v.  Muggles,  7  Johns.  R.  290,  the  general  form  of  the  indictment 
corresponds  with  those  in  Chitty  and  Treraaine.  The  prefatory  averments  and 
conclusion  are  the  same.  But  the  precedent  itself  is  not  here  inserted.  The 
horrid  and  disgusting  character  and  terms  of  the  blasphemy  in  that  case,  are  too 
revolting  to  be  placed  upon  record  oftener  than  necessity  requires. 

There  is  also  another  precedent  in  another  ancient  book,  entitled  "  OlBcium 
Clerici  Pacis,"  p.  192, 193,  which  is  not  here  inserted  for  the  reason  last  given. 


BRIBERY,  75 

the  county  of  yeomnn,  devisinj^  and  intendins;  to   scanda- 

lize and  yilily  the  true  Christian   religion,  as  received  and  pub- 
licly prolessed  widiin  this  (Commonwealth)  ;  and  to  blaspheme 
God  and   our  Lord  Jesus  Christ,  the  Saviour  of  the  world,  on 
at  in   the  county  aforesaid,  bavins;  and  holding  in 

his  hands,  a  certain  cup  of  wine,  unlawfully,  wickedly,  and  blas- 
phemously, in  the  presence  and  hearing  of  divers  good  and  wor- 
thy citizens  of  the  said  Commonwealth,  spoke,  pronounced,  and 
with  a  lo-id  voice  published,  these  profane  and  blasphemous 
words  following,  that  to  say,  «  Here  's  a  health  to  Father,  Son, 
and  Holy  Ghost,"  (meaning  Almighty  God,  Jesus  Christ  the 
Saviour  of  the  world,  and  the  Holy  Spirit;)  and  immediately 
thereupon,  then  and  tbere  drank  the  wine  from  ihe  said  cup  ; 
to  the  great  dishonor  of  Almighty  God,  in  contempt  and  dis- 
grace of  the  Holy  Trinity,  to  the  great  scandal  of  the  profession 
ot  the  Chrisuan  religion,  and  against  the  peace  and  dignity  of 
tlie  Commonwealth  aforesaid. 


BRIBERY. 

81.  Against  a  Justice  of  the  Court  of  Common  Pleas,  for  accept- 
ing a  Bribed 

The  jurors  S:c.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  Esquire,  on  at  in  the  coun- 

ty aforesaid,  was  one  of  the  justices  of  the  Court  of  Common 
Pleas,  k.c.  [here  state  the  style  of  the  Court,']  duly  and  le'^ally 
appointed,  qualified,  and  sworn  to  discharge  and  jJerforirTthe 
duties  of  that  office  ;  the  same  being  an  office  of  importance  and 
trust,  concerning  the  administration  of  justice  within  this  Com- 
monwealth. And  that  the  said  A.  B.,  being  then  and  there  such 
justice  of  said  Court  of  Common  Pleas  as  aforesaid,  conrrivin*' 
and  intending  the  duties  of  his  said  office,  and  the  trust  and 
confidence  thereby  reposed  in  him,  to  prostitute  and  betray,  did 
then  and  there  unlawfully  and  corruptly  accept  and  receive  of 
one  C.  D.  the  sum  of         dollars,  as   a  bribe  and  pecuniary  re- 

'  This  offence  is  punishable  at  common  law.     See  4  Bl,  Com.  139  •    3  Ins( 
147;  Rexv.  FaugAa?i,  4  Burr.  2500 ;  2  Chit.  C.  L.  G81,  and  authorities  there  - 
quoted. 


76  BRIBERY. 

ward,  to  influence  and  induce  him  the  said  A.  B.  to  [Acre  state 
the  facts  relative  to  the  subject-matters  of  the  biibe  ;^  and  that  he 
the  said  A.  B.  did  thereby  unlawfully,  wilfully,  and  corrnpdy, 
prostitute,  violate,  and  betray,  for  the  bribe  and  pecuniary  reward 
aforesaid,  so  as  aforesaid,  by  iiim  the  said  A.  B.,  in  his  said 
office,  taken,  accepted,  and  received,  the  duties  of  liis  oHice,  and 
the  trust  and  confidence  in  him  therein  and  thereby  reposed  ; 
to  the  great  scandal,  dishonor,  and  prostitution  of  the  public 
justice  of  said  Commonwealth,  and  against  the  peace  and  dignity 
of  the  same  Commonwealth. 

82.  For  attempting  to  bribe  a  Justice  of  the  Court  of  Common 

Fleas."- 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
in   the   county   of  Esquire,  on  the  day   of 

at  B.  aforesaid,  in  the  county  aforesaid,  was  one  of  the  justices 
of  the  Court  of  Common  Pleas,  [here  state  the  style  of  the 
Court,']  duly  and  legally  appointed,  qualified,  and  sworn  to  dis- 
charge and  perform  the  duties  of  said  office  ;  the  same  being 
an  ofiice  of  trust  and  imporlance  in  the  administration  of  public 
justice  within  the  said  Commonweallh  ;  and  that  C.  D.,  of 
'in  the  county  aforesaid,  yeoman,  on  the  same  day  of 

in  the  year  aforesaid,  at  B.,  in  the  county  aforesaid,  \tell  knowing 
the  premises,  but  unlawfully  and  corruptly  devising  and  intending 
the  said  A  1>.  to  seduce  and  corrupt,  and  to  tempt  him  to  vio- 
late, prostitute,  and  betray  the  duties  of  his  said  office,  and  the 
trust  and  confidence  thereby  reposed  in  him,  did  then  and  there 
unlawfully  and  corruptly  propose  and  offer  to  pay  to  the  said 
A.  B.,  being  then  and  there  such  justice  as  aforesaid,  the  sum 
of  dollars,  as  a  bribe  and  pecuniary  reward,  to  induce  and 

influence  him  the  said  A.  B.  to  violate,  betray,  and  prosfitute  the 
duties  of  his  said  office,  by  [here  insert  the  facts  concerning 
which  the  bribe  was  offered ;  ]  to  the  great  injury  and  dishonor  of 
him  the  said  A.  B.,  and  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 


»  Attempt  to  bribe,  though  it  does  not  succeed,  is  indictable.    2  East,  5  ; 
1  East's  Rep.  183 ;  Rex  v.  Vaughan,  4  Burr.  2491.. 


BRIBERY.  77 


83.  For  bribing  a  Person  to  'procure  an   Office  of  Trust :  On 

the  Provincial  iStatvte  of  Massachusetts  o/J75S.^ 

The  jurors  &tc.,  upon  their  oath  present,  that  A.  B.,  of 
in   the   county   of  yeoman,  on  the  day  of 

at  B.  aforesaid,  in  the  county  aforesaid,  did  unlawfully  and  cor- 
ruptly give  and  engage  to  pay  to  one  C.  D.  the  sum  of 
dollars  as  a  consideration  and  pecuniary  reward  in  order  to  in- 
duce liim  the  said  C.  D.,  by  his  interest  and  influence,  to  pro- 
cure and  obtain  for  him  the  said  C.  D.  the  office  of  \Jiere  state 
the  name  and  description  of  the  offce^,  which  said  office  was  then 
and  there  a  place  of  trust  within  the  said  Commonwealth ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

84.  For  accepting  a  Bribe  to  procure  an  Office  of  Trust :  On  the 

Provincial  Statute  of  Massachusetts  o/*1758. 

Tiie  jurors  &ic.,  upon  their  oath  present,  that  A.  B.  &;c.,  on 
he,  at  &ic.,  did  unlawfully  and  corruptly  accept,  take,  and  re- 
ceive of  one  C.  D.  the  sum  of  dollars,  as  a  consideration 
and  pecuniary  reward  for  procuring  for  him  the  said  A.  B.  the 
office  of  [/tere  insert  the  name  and  description  of  the  office^y 
which  office  was  then  and  there  a  place  of  trust  within  this 
Commonwealth  ;  against  the  peace,  and  contrary  to  the  form  of 
tlie  statute  in  such  case  made  and  provided. 

85.  For  offering   to  bribe  a   Commissioner  of  the  Revenue  of 

the  United  States.^ 

The  jurors  Sec,  upon  their  oath  present,  that  A.  B.,  of 
in   the   district  of  yeoman,  on  at  and  within 

the  jurisdiction  of  this  court,  wickedly,  advisedly,  and  corruptly 
did  solicit,  urge,  and  endeavour  to  procure  one  C.  D.,  he  the  said 
C.  D.  then  and  there  being  a  commissioner  of  the  revenue  of 
the  said  United  States,  and  then  and  there  interested  and 
employed  in  the  execution  of  the  duties  of  the  said  office,  to 
receive  proposals  for  contracting  to  build  a  light-house  on  Cape 
Hatteras,  and  a  beacon  on  Shell  Castle  Island,  for  contracting 
with  and  giving  a  preference  to  him  the  said  A.  B.,  for  the 

'  Mass.  Laws,  vol.  ii.  Appendix,  1039,  (Ed.  of  1801.)  This'statute  has  never 
been  revised,  and  is  the  only  existing  statute  in  Massachusetts  upon  the  subject 
of  bribery. 

2  2  Dall.  386. 


78  RniREUY. 

buikling  of  the  said  li2;lit-honsc  and  beacon  ;  and  in  order  to  pre- 
vail uj)on  him  the  said  C.  D.  to  ac^rec  to  give  him  die  said  A.  IJ. 
the  preference  in,  and  the  bcneht  of  such  contract,  he  the  said 
A.  B.  then  and  there  did  wickedly,  advisedly,  and  corruptly  offer 
to  give  the  said  C.  D.,  then  and  there  being  commissioner  of  die 
revenue  of  the  United  States  as  aloresaid,  the  sum  of  dollars  ; 
in  contcm|)t  of  the  laws  and  constitution  of  the  said  United  States, 
and  against  die  peace  and  dignity  of  the  said  United  States. 

SG.  For  endeavouring  to  bribe  a  Constable.^ 

The  jurors  &c.,  upon  their  oath  present,  that  heretofore,  to  wit, 
on  at  one  A.  B.  Esquire,  then  and  yet  being  one  of 

the   justices  of  die  peace  in  and  for  die  county  of  duly 

qualified,   appointed,  and   sworn  to  discharge  and  perform  the 
dunes  of  said  office,  did  then  and  diere  make  and  issue  a  certain 
warrant   under  his  hand  and  seal,  in  due  form  of  law,  bearing 
date  the  day  and  year  aforesaid,  directed  to  any  of  die  consta- 
bles of  the  town  of  in  the  county  aforesaid,  thereby  com- 
manding them,  upon  sight  thereof,  to  take  and  bring  before  him 
the  said  A.  B.,  so  being  such  justice  as  aforesaid,  [or  some  other 
justice  of  the  peace  for  the  said  county,  if  such  be  the  ivarrant,]  the 
body  of  one  C.  D.,  late  of  in  the  county  aforesaid,  to  an- 
swer [as  in  the  warrant,]  and  which  said  warrant  afterwards,  to 
wit,  on  the           day  of           and  year  aforesaid,  at  afore- 
said, in  the  county  aforesaid,  was  delivered  to  E.  F.  of  in  the 
county  aforesaid,  yeoman,  he  the  said  E.    F.  then  being  one  of 
the  constables  of  the  said  town  of             aforesaid,  duly  appoint- 
ed and  qualified  to  discharge  the  dudes  of  said  oflice  of  constable, 
to  be  executed  in  due  form  of  law.     And  the  jurors  aforesaid; 
upon  their  oath  aforesaid,  do  further  present,  that  G.  H.,  late  #f 
in  the  county  aforesaid,  laborer,  well  knowing  the  premises, 
but  contriving  and  unliwfully  intending  to  pervert  the  due  course 
of  law  and  justice,  and  to  prevent  the  said  C  D.  from  being  arrest- 
ed and  taken  under  and  by  virtue  of  the  warrant  aforesaid,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at             aforesaid 
in  the  county  aforesaid,  unlawfully,  wickedly,  and  corruptly,  did 
offer  unto  the  said  E.  F.,  so  being  constable  as  aforesaid,  and 
having  in  his  custody  and  possession  the  said  warrant,   so  deliv- 
ered to  him  to  be  executed  as  aforesaid,  the  sum  of  dol- 
lars, if  he  the  said  E.  F.  would  refrain  from  executing  the  said 
warrant,  and  from  taking  and   arresting  the  said  C.  D.  under 


I  Archb.  Cr.Pl.  322. 


BRIBERY. 


79 


and  by  virtue  of  the  same  warrant,  for  and  during  fourteen  days 
irom  that  time,  that  is  to  say,  from  the  time  he  the  said  G.  H  so 
ofFered   the  said   sum   of  to  the  said  E.  F.  as  aforesaid; 

and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  G.  If.,  in  manner  and  form  aforesaid,  did  attempt  and 
endeavour  to  bribe  tlie  said  E.  F.,  so  being  constable  as  afore- 
said, to  neglect  and  omit  to  do  his  duty  as  such  constable,  and 
to  relrain  h-om  taking  and  arresting  the  said  C.  D.  under  and  by 
virtue  ol  the  warrant  aforesaid  ;  against  the  peace  and  dignity  of 
said  Commonwealth. 

87.  For  Bribery  of  a  Judge  of  the  United  States  :    On  the  act 
of  .Ipril  30,   1790,  ^21} 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of 
m  the  district  of  on  at  within  the  district  afore- 

said, did  give  to  one  C.  D.  of  &:c.,  he  die  said  C.  D.  being  then 
and  there  a  judge  of  [litre  insert  the  style  of  the  Court}  duly 
and  legally  apj)ointed  and  qualified  to  discharge  the  duties  of 
that  olhce,  the  sum  of  dollars,  as  a  bribe,  present,  and  re- 

ward, to  obtain  and  procure  the  opinion,  judgment,  and  decree 
ol  him  the  said  C.  D.,  in  a  certain  suit  [controversy  or  causel 
then  and  there  depending  before  him  the  said  C.  D.,  asjudtjeas 
aloiesaid,  of  the  said  court:  to  wit  [Acre  state  the  nature  c^' the 
suit ;  ]  the  said  ollice  of  judge  of  die  said  court  being  then  and 
there  an  office  and  trust  concerning  the  administration  of  justice 
within  the  said  United  States ;  against  the  peace  of  said  United 
States,  and  contrary  to  the  form  of  the  statute  thereof  in  such 
case  made  and  provided. 

88.  For  giving  a  Bribe  to  the  President  or  Directors  of  the 
Bank  of  the  United  States:   On  the  act  of  March  3,  IS  19 
§  4.2  J  ^  ■, 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.  of  &c.,  in 
the  district  aforesaid,  genUeman,  on  at  did  ""ive  the 

sum  of  dollars  to  one  C.  D.  of  &cc.  [or  if  any  other  bribe 

mentioned  in  the  statute,  state  it,]  he  the  said  C.  D.  being  then 
and  there  the  president  of  the  bank  of  the  United  States,  [or 
one  of  the  directors  of  the  bank  of  the  United  States  or  presi- 
dent or  director  of  one  of  the  branch  banks  of  the  United  States, 
established  at  as  the  case  may  be,]  as  a  bribe,  present,  and  re- 
ward, to  obtain  and  procure  the  opinion,  vote,  and  interest  of  the 

'  Gord.  Digest,  p.  713,  art.  3635.  2  Gord.  Digest,  art.  3642. 


60  BRIBERY. 

said  C.  D.,  the  said  president  of  the  said  bank  of  the  United 
States,  [or  director  thereof,  as  the  fact  may  be,]  in  a  certain  elec- 
tion [^hcrc  state  the  matter  or  thins;  which  was  the  question  before 
the  president  and  directors  i^t'.]  which  came  hclbre  tiie  said 
president  and  directors  for  decision,  in  relation  to  the  interest  and 
mana;i;einent  of  the  business  of  the  said  bank  ;  against  the  peace 
of  said  United  States,  and  against  the  form  of  the  statute  thereof 
in  such  case  made  and  provided.^ 

89.  Against  an  Officer  of  the  Customs  for  receiving  a  Bribe  for 

a  false  Entry  of  a  Vessel,  Goods,  Sfc. :    O/i  the  Act  of  the 
United  States  of  March  2,   1719,  ^  88.~ 

The  jurors  Stc,  upon  their  oath  present,  that  A.  B.,  of&:c.,on 
&;c.,  at  &.C.,  he  the  said  A.  B.  being  then  and  there  an  oflicer  of 
the  customs,  to  wit,  ^lere  state  the  name  of  the  officer,  and  the 
place  where  he  discharged  his  duty,  and  where  the  custom-house 
was  established,^  did  directly  and  corruptly  take  and  receive  of 
one  C.  D.,  of  ^c,  the  sum  of  dollars,  as  a  bribe,  reward, 

and  recompense  for  permitting  him  the  said  C.  D.  to  make  a 
false  entry  of  a  certain  vessel,  called  the  [here  state  the  name  of 
the  vessel,^  and  of  the  goods  and  cargo  on  board  the  same,  to  wit, 
[here  state  the  facts  relative  to  the  false  entry,  how  it  was  done, 
and  the  fraud  relative  to  the  false  entry  of  the  cargo  or  goods  ;  ] 
against  the  peace  of  the  said  United  States,  and  against  the  form 
of  the  statute  thereof  in  such  case  made  and  provided. 

Burying  Places.  —  See  "  Sepulchres  of  the  Dead." 

Burning.  —  See  "  Arson." 

Bridges.  —  See  "  Nuisance." 

'  The  statute  inflicts  the  same  penalties  upon  the  oflficer  of  the  bank  who 
accepts  the  bribe. 

2  Gord.  Digest,  art.  2014. 


BURGLARY,  &C.  81 


BURGLARY : 

AND  OTHER  BREAKING  AND  ENTKKING  OF  BUILDINGS. 

90.  Indictment  for  Burglary  at  Common  Law} 

The   jurors  Sec,  upon  their  oath  present,  that  A.  B.,  late  of 
in  the  county  of  laborer,  on  about  the  hour 

of  one  in  the  night  of  the  same  day,  with  forc6  and  arms,  at 
in  the  county  aforesaid,  the  d well ing- house  of  one  C.  D. 
there  situate,  feloniously  and  burglariously  did  break  and  enter, 
uidi  intent  the  goods  and  chattels  of  the  said  C.  D.,  in  the  said 
dwelling-house  then  and  there  being,  then  and  there  feloniously 
and  burglariously  to  steal,  take,  and  carry  away  ;  and  one  gold 
watch  of  the  value  of  fifty  dollars  [descriht  the  property  and 
value  of  each  article  according  to  the  fict^  of  the  goods  and 
chattels  of  the  said  C.  D.  in  the  dweilinq-house  aforesaid  then 
and  there  being  found,  then  and  there  (eloniously  and  burglari- 
ously, did  steal,  take  and  carry  away  ;  against  the  peace  and  dig- 
nity of  the  Commonwenlih  aforesaid. 

91.  For  a  Burglary  icith  intent  to  steal. '^ 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  laborer,  on  about  the  hour  of  one 

in  the  night  of  the  same  day,  with  force  and  arms,  at 
aforesaid,  in  the  courity  aforesaid,  the  dwelling-house  of  one 
C.  D.  there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  the  goods  and  chattels  of  the  said  C  I).,  in  the 
dwelling-house  aforesaid  then  and  there  being  found,  then  and 
there  feloniously  and  burglariously  to  steal,  take,  and  carry  away  j 
against  the  peace  of  said  Commonwealth,  [^if  there  he  a  statute 
punishing  the  offence,]  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

'  Stark.  Cr  PI.  414 ,  3  Chitt.  C.  L.  1100.  See  the  notes  both  in  Starkie  and 
Chitty,  as  to  the  different  alie£;ations  in  the  indictment.  They  are  nearly  the 
same  in  both.  See  also  a  precedent  in  Cro.  C.  C.  203,  (6th  Ed.)  in  which  the 
words  "  with  intent  the  good*  and  chattels  of  the  said  C.  D.  &c.,  in  the  said 
dwelling-house  then  and  there  being,  feloniously  and  burglariously  to  steal  &c." 
are  omitted. 

*  3  Chitt.  C.  L.  1101  ;  2  Leach,  712;  Vandercourt  and  Abbot's  case. 
11 


83  BURGLARY,  hc. 


92.  For  a  Burglary,  Defendant  being  armed  with  a  dangerous 

IVenpun} 

The  jurors  for   said    Commonwealth,  upon  iheir  oath  present, 
that  A.  B.,  of  in  the  couniy  of  lahorer,  on  the 

day  of  about  the  hour  of  eleven   in  the  night  of  the  same 

day,   with    force    and    arms,    at  aforesaid,   in   the  county 

aforesaid,  the  dwellln^-housc  of  one  C.  D.  diere  situate,  feloni- 
ously and  burglariously  did  break  and  enter,  with  intent  the 
goods  and  chattels  of  the  said  C.  I),  in  the  dwelling-house  afore- 
said then  and  there  being  found,  feloniously  and  burglaricAisly  to 
steal,  take,  and  carry  away  ;  he  the  said  C.  D.  and  divers 
others  of  his  family  being  then  and  there  lawfully  in  the  said 
dwelling-house;  and  he  the  said  A.  B.  being  then  and  there,  at 
the  time  of  breaking  and  entering  said  dwelling-house  as  afore- 
said, armed  with  a  certain  dangerous  weapon  called  a  pistol, 
which  was  then  and  there  loaded  with  gunpowder  and  leaden 
bullets;  and  one  silver  tankard  of  the  value  of  fdiy  dollars,  ol  the 
goods  and  chattels  of  the  said  C  D.  in  the  dwelling-house  afore- 
said then  and  there  being  found,  then  and  there  feloniously  and 
burglariously  did  steal,  take,  and  carry  away  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

93.  For  a  Burglary  by  breaking  out  of  a  Dive.lling-house," 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  laborer,  on  the  day  of  about 

the  hour  of  two  in  the  night  of  the  same  day,  at  B.  aforesaid,  in 
the  county  aforesaid,  having  entered,  and  then  and  there  being  in 
the  dwelling-house  of  one  C.  D.  there  situate,  with  intent  the  goods 
and  chattels  ol  him  the  said  C.  D.  in  the  dwelling-house  aforesaid 
then  and  there  being,  feloniously  and  burglariously  to  steal,  take, 
and  carry  away  ;  one  pocket-book  of  the  value  of  one  dollar,  and 
sundry  bank  notes,  amounting  together  to  the  sum  of  fifty  dollars, 
and  of  the  value  of  fifty  dollars,  of  the  goods  and  chattels  of  him 
the  said  C.  D.,  in  the  said  dwelling-house  of  him  the  said 
C.  D.  then  and  there  being  found,  then  and  there,  with  force 
and  arms,  feloniously  did  steal,  take,  and  carry  away  ;  and  that 
he  the  said  A.  B.  being  so  as  aforesaid  entered,  and  in  the  said 
dwelhng-house,  with  the  said  felonious  intent,  and  having  com- 

1  On  the  first  section  of  the  statute  of  Massachusetts,  1805,  ch.  101. 

2  Ibid. 


BURGLARY,  &,C.  83 

mitted  the  felony  and  larceny  aforesaid,  and  being  then  and  there 
armed  with  a  certain  dangerous  weapon  called  a  cutlass,  on  the 
same  day  of  aforesaid,  in  the  year  aforesaid,  about 

the  hour  of  two  in  the  night  of  the  same  day,  with  force  and 
arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  same  dwelling- 
house  then  and  there  feloniously  and  burglariously  did  break  to 
get  out  of  the  same,  and  then  and  there  did  break  and  get  out  of 
the  same,  he  the  said  C.  D.  and  divers  others  of  his  family  being 
then  and  there  lawfully  in  his  dwelling-house ;  against  the 
peace  of  said  Commonwe;dth,  and  contrary  lo  the  form  of  the 
statute  in  such  case  made  and  provided. 

94.  For  Jhirfrlary,  icherc  the  Prisoner  armed  himself  with  a 
dangerous  Weapon  in  the  Dwelling-house.^ 

The  jurors  &.C.,  upon   their   oath  present,  that  A.  B.,  of  &ic., 
on  the  day  of  now  last  past,  about  the  hour  of  two 

in  the  night  of  the  same  day,  wiili  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  C.  D. 
there  situate,  feloniously  and  burglariously  did  break  and  enter, 
with  intent  the  goods,  chattels,  and  money  of  the  said  C.  D.,  in 
the  dwelling-house  aforesaid  then  and  there  being,  feloniously 
and  burglariously  to  steal,  take,  and  carry  away  ;  he  the  said 
C.  D.,  and  divers  others  of  his  family,  being  then  and  there 
lawfully  in  said  dwelling-house  ;  and  that  he  the  said  A.  B. 
having  then  and  there,  in  the  dwelling-house  aforesaid,  armed 
himself  with  a  certain  dangerous  weapon  called  a  fire-shovel,  ten 
linen  shirts  of  the  value  of  twenty  dollars,  and  sundry  pieces  of 
silver  coin  called  Spanish  milled  dollars,  amounting  together  to 
the  sum  of  ten  dollars,  and  of  the  value  of  ten  dollars,  of  the 
monies,  goods,  and  chattels  of  him  the  said  C.  D.,  then  and 
tliere  in  the  dwelling-house  aforesaid  being  found,  then  and  there 
feloniously  and  burglariously  did  steal,  take,  and  carry  away  ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

95.  For  Burglary,   where  the   Prisoner  committed  an  Assault 
upon  a  Person  lawfully  in  the  House? 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B,,  of  B.,  in 
the   county   aforesaid,   laborer,  on   the  day  of  now 

last  past,  about  the  hour  of  eleven  in  the  night  of  the   same  day, 


'  On  the  first  section  of  the  statute  of  Massachusetts,  1805,  ch.  101. 
«  Ibid. 


84  BURGLARY,  &C. 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the 
dwellin2;-house  ofone  C.  D.  there  situate,  feloniously  and  bur- 
glariously did  break  and  enter,  with  intent  the  goods  and  chattels 
of  the  said  C.  D.,  in  the  dwelling-house  aforesaid  then  and  there 
being,  feloniously  and  burglariously  to  steal,  take,  and  carry 
away  ;  he  the  said  C.  D.,  and  divers  others  of  his  family,  being 
then  and  there  lawfully  in  the  said  dwelling-house,  and  that  he 
the  said  A.  B.  then  and  there,  in  and  upon  one  E.  F.,  who  was 
then  and  there  lawfully  in  the  said  dwelling-house,  feloniously 
and  burglariously  an  actual  assault  did  make,  and  him  the  said 
E.  F.  did  then  and  there  beat,  wound,  and  abuse,  and  ten  pieces 
of  gold  coin,  called  eagles,  of  the  value  of  one  hundred  dollars, 
of  the  monies'  of  him  the;  said  CD.,  then  and  there  in  the 
dwelling-house  aforesaid  being  found,  feloniously  and  burglari- 
ously did  steal,  take,  and  carry  away  ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

96.  Burglary  against  the  Principal,  and  others  present,  aiding, 
assisting,  ^'C.^ 

The  jurors  &:c.,  upon  their  oath  present,  that  [draw  the  in- 
dictment against  the  principal,  conformable  to  the  foregoing  pre- 
cedents, as  the  case  may  be,  and  then  proceed  as  follows.]  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  j)re- 
sent,  that  A.  B.,  of  in  the  county  of  laborer,  at  the 

time  said  felony  and  burglary  was  committed,  in  manner  and 
form   aforesaid,   to  wit,   on   the   said  day  of  in  the 

year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the  coun- 
ty aforesaid,  was  feloniously  and  burglariously  present,  aiding, 
assisting,  and  consenting  to  the  felony  and  burglary  aforesaid, 
and  aiding  and  assisting  the  said  A.  B.  the  felony  and  burglary 
aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 

1  This  word  ought  to  be  used,  when  the  property  stolen  is  cash  or  money. 
3  Chitt.  C.  L.  947. 

2  On  the  first  section  of  the  Statute  of  Massachusetts,  1805,  c.  101. 

5  See  "  Accessory,"  for  precedents  against  accessories  in  burglary  before  and 
after  the  fact. 


BURGLARY,  &CC. 


85 


97.  For  entering  a  Dwelling-house,  in  the  Mght  Time,  without 

breaking,  with  Intent  ^c.^ 
_    The  jurors  fee,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  lahorer,  on  the  day  of  now 

last  past  at  B  aforesaid,  in  the  county  aforesaid,  the  dwelling- 
house  of  one  C.  D.  there  situate,  in  the  night  ti.ne,  to  wit,  aboSt 
the  hour  of  two  .n  the  night  of  the  same  day,  did  enter  without 
breaking,  with  nitent  the  goods  and  chattels  of  hini  the  said 
^.  U.,\n  the  dwelling-house  aforesaid  then  and  there  being  fe- 
loniously to  steal  take,  and  carry  away  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form"  of  the  statute  in 
such  case  made  and  provided. 

98.  For  breaking  and  entering  a  Ship  or   Vessel,   in  the  Day 

Tune,  with  Intent  ^-c.^ 
^    The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  ship,^  belonging  to,  and  the  property  of  one 
C.  D.     called  the  then   and   there   lying  and  being  within 

the  body  of  the  said  county  of  in  the  day  time,  did  break 

and  enter,  wah  intent  the  goods,  chattels,  and  monies  of  the  said 
^.  U.,  m  the  ship  aforesaid  then  and  there  being,  feloniously  to 
stea  ,  take,  and  carry  away  ;  against  the  peace  of^  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 


>  On  the  fourth  section  of  the  Statute  of  Massachusetts,  1805,  c.  101. 
•  On  the  same  section  of  the  statute. 


The  kuid  of  vessel,  whether  ship,  sloop,  &c.,  should  be  truly  inserted. 

If  any  one,  but  not  all  the  owners  are  known,  the  name  of  the  one  known 
may  be  stated  ;  the  names  of  the  others  may  be  alleged  to  be  unknown  to  the 
grand  jury. 

*  The  two  preceding  precedents  may  be  adopted  in  all  the  other  cases  men- 
tioned m  the  fourth  section  of  the  statute,  by  varying  the  allegation  as  to  the 
description  of  the  building,  or  vessel  broken,  according  to  the  fact,  and  in  the 
identical  words  of  the  statute. 


86  CHALLENGING  TO  FIGHT. 


CHALLENGING  TO  FIGHT. 

99.  For  sending  a  written  Challenge} 

The  jurors  &,c.,  (ipon  their  oath  present,  that  A.  R.,  of  B.,  in 
the  county  aforesaitl,  gentlenrui,  heing  an  evil  disjiosed  person, 
and  intending  to  do  great  bodily  harm  and  inischielto  one  C.  D., 
and  to  j)rovoke  and  excite  hini  the  said  C.  D.  unlawlully  to  fight 
a  duel  with  and  against  the   said    A.  B.,  on  at  did 

iinlawTully,  wickedly,  and  maliciously,  write,  send,  and  deliver, 
and  did  raiise  to  he  written,  sent,  and  delivered  to  the  said  C.  D. 
a  certain  paper  writing,  in  the  form  and  manner  of  a  letter  from 
the  said  A.  B.  to  the  said  C.  D.,  containing  therein  as  follows, 
\or  to  the  purport  and  effect  Jolloiving,']  that  is  to  say>  [Acre  set 
forth  the  letter,  with  proper  iniiendoes  to  explain  it ;]  meaning 
and  intending,  by  the  said  paper  writing,  a  challenge  to  the  said 
C.  D.  to  fight  a  duel  with  and  against  him  the  said  A.  B.  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

100.  For  sending  a  Challenge  in  a  Letter.^ 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  gentleman,  being  a  person  of  a  turbulent, 
wicked,  and  nialiclous  disposition,  and  wickedly  and  maliciously 
designing  and  intending,  not  only  to  disquiet  and  terrify  one 
C  D.,  but  also  the  said  C.  D.  maliciously  and  violently  to  kill 
and  murder ;  and  he  the  said  A.  B.  his  said  malicious  designs 
and  intentions  the  sooner  to  complete  and  put  in  practice,  on 
at  in   the   county   aforesaid,  did    unlawfully   and 

wickedly  provoke  and  excite  the  said  C.  D.  to  fight  a  duel 
against  him  the  said  A.  B.  with  [Ae?'e  name  the  instrument, 1  and 
that  he  the  said  A.  B.,  a  certain  challenge,  in  the  name  of  the 
said  A.  B..  in  the  form  of  a  letter  to  the  said  C.  D.  directed, 
did  then  and  there  wickedly  and  maliciously  write  and   cause  to 

*  This  precedent  is  taken  from  3  Chitt.  C.  L.  848,  and  is  therein  said  to  have 
been  "  settled  in  1809  by  an  eminent  crown  lawyer  now  on  the  bench.''  Some 
of  the  prefatory  averments,  and  the  "  great  terror  "  of  the  parties  challenged,  in 
the  conclusion,  are  omitted,  as  not  necessary  to  the  validity  of  the  indictment. 
See  note  (w)  to  this  precedent  in  Chitty,  and  the  authorities  there  referred 
to  explaining  this  offence. 

2  Taken  from  3  Chitt.  C.  L.  852.  A  similar  precedent  is  there  referred  to  in 
Cro.  C.  C.  (154,  6th  Ed.)  ;  in  which  the  purport  of  the  letter  is  not  set  forth, 
nor  any  intimation  that  it  ought  to  be.  In  the  above  and  other  precedents  in 
Chitty  the  letter  or  writing  is,  or  is  supposed  to  be,  set  forth. 


CHALLENGING  TO  FIGHT.  87 

be  written,  which  said  letter  was  to  the  purport  and  effect  fol- 
lowing/ that  is  to  say,  [here  set  forth  the  letter,  icilh  proper  inu- 
cndoes  to  explain  /<,]  which  said  challenge,  so  as  aforesaid  writ- 
ten and  directed,  he  the  said  A.  B.,  afterwards,  to  wit,  on  the 
day  of  at  aforesaid,  in  the  county  aforesaid, 

to  the  said  C.  D.  wickedly  and  maliciously  did  send  and  de- 
liver, and  cause  to  be  sent  and  delivered  to  the  said  C.  D. ; 
against  the  peace  and  dignity  of  the  Couinionwealih  aibresaid. 

101.  Another  Precedent  for  challenging  by  Letter.^ 

The  jurors  Sec,  upon  their  oath  present,  [^here  set  forth  the 
introductory  and  prefatory  matter,  as  in  the  next  preceding  pre- 
cedents, and  then  proceed.^  And  the  said  A.  B  ,  in  pursuance 
of,  and  for  the  conipleiing  his  said  intent  and  liesign,  did  inilaw- 
lully,  wickedly,  and  inalicimisly,  by  a  leltor  and  writing,  provoke, 
excite,  and  challenge  the  said  C.  D.  unlawlnlly  to  figlit  a  duel 
with  and  against  the  said  C.  D. ;  against  the  peace  and  dignity 
of  said  Commonwealth. 

102.  For  a  verbal  Challenge.^ 

Tlie  jurors  &,c.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  gentleman,  being  an  evil   disposed   per- 
son, and  intending  to  do  great  bodily  harm  and  mischief  to  one 
C.  D.,   and   to  provoke  and  incite  him  the  said  C.  D.  unlawfully 
to  fight  a  duel  with   him   the   said    A.  B.,   on  at  in 

pursuance  of,  and  for  the  completing  of  his  said  intent  and  de- 
sign, did  unlawtully,  wickedly,  and  maliciously,  by  opprobrious 
words  and  threatening  language,  provoke,  excite,  and  challenge 
the  said  C.  D.  unlawfully  to  fight  a  duel  with  and  against  him 
the  said  A.  B. ;  against  the  peace  and  dignity  of  said  Common- 
wealth. 

103.  Another  Precedent  for  a  verbal  Challenge.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  B.,  in 
the  county  aforesaid,  gentleman,  being  a  person  of  a  wicked  and 
malicious  mind  and    disposition,   and    wickedly,   unlawfully,  and 

'  3  Chitt.  C.  L.  850.  In  these  precedents  the  letter  is  not  copied  nor  intended 
to  be  set  forth,  either  in  the  "  tenor  "  or  the  "  purport  and  effect."  But  it  is  ad- 
visable that  the  challensje,  whether  verbal  or  in  writing,  should  be  set  out  in 
the  indictment.     See  6  Wentw.  385. 

»  3  Chitt.  C.  L.  850. 

'  3  Chitt.  a^g,  860. 


88  CHALLENGING  TO  FIGHT. 

maliciously  devising  and  intending  to  move,  incite,  instigate,  and 
provoke  one  C.  D.  to  fight  a  duel  with  him  the  said  A.  B.,  and 
therehy  to  kill  and  murder  him  the  said  C.  D.,  on  at 

did  vvii-kedly,  unlawfully,  openly,  and  maliciously  challenge,  and 
endeavour  to  move,  incite,  instigate,  and  jjiovoke  the  said  C.  D. 
to  fight  a  duel  with  him  the  said  A.  B.,  by  then  an  there  unlaw- 
fully, maliciously,  and  openly,  and  in  the  presence  and  hearing 
of  him  the  said  C.  D.,  and  without  any  just  cause  or  provoca- 
tion whatever,  speaking  and  uttering  these  hostile,  threatening, 
and  challenging  words  following,  that  is  to  say,  [^here  set  forth 
the  words  spoken,^  by  means  whereof  the  said  C.  D.  was  put  in 
great  fe;ir  and  iipprehension  of  his  life;  against  the  peace  and 
dignity  of  the  Counnonwealth  aforesaid. 

104.   For  carrying  a  Challenge  to  the  Prosecutor.^ 

The  jurors  &,c.,  upon  their  o;ith  present,  that  A.  B.,  of 
in  the  county  of  yeoman,  being  a  person  of  dissolute  char- 

acter and  malicious  disposition,  and  unlawfully  and  maliciously 
intending  to  procure  great  bodily  harm  and  mischief  to  be  done 
to  C.  D.,  of  gentleman,  and  to  incite  and  provoke  the  said 

C.  D.  unlawfully  to  fight  a  duel  with  and  against  one  E.  F.,  of 
the  same  place,  Esquire,  on  at  did  unlawfully,  wick- 

edly, and  maliciously  deliver  and  cause  to  be  delivered  a  certain 
vvriilen  challenge,  of  and  from  the  said  C.  D.  to  the  said  E.  F., 
unlawfully  to  fight  a  duel  with  and  against  the  said  C.  D.,  which 
written  challenge  is  as  follows  ;  that  is  to  say,  [here  set  out  the 
ivrit  I  en  challenge ;]  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 

105.  For  provoking  and  inciting  Prosecutor  to  fight. 

The  jurors  Stc,  upon  their  oath  present,  t  at  A.  B.,  of 
in  the   county  aforesaid,  gentleman,  being  a  person   of  dissolute 
character  and  malicious  disposition,  and  unlawfully  and  malicious- 
ly intending  to  incite  and  provoke  one  C.  D.  to  fight  a  duel  with 
and  against  one  E.  F.,  on  at  did  unlawfully,  wick- 

edly, and  maliciously  incite  and  provoke  the  i^aid  C.  D.  unlaw- 
fully to  fight  a  due:  with  the  said  E  F. ;  against  the  peace  and 
dignity  of  the  Commonwealth  aforesaid. 


»  3  Chitt.  C.  L.  854.  See  Hawk,  b,  1,  c.  63,  §  3,  for  the  authority  for  this 
and  the  following  precedents.  See  also  3  Chitt.  C.  L.  854—858,  &c.  for  a  prece- 
dent for  writing  and  delivering  a  challenge  and  other  precedents,  the  substance 
of  which  is  similar  to  those  here  inserted. 


CHALLENGING  TO  FIGHT.  89 

106.  For  engaging  in  a  Duel,  tchere  no  Homicide  ensued} 

The  jurors  &ic.,  upon  their  oaih  present,  that  A.  B.,  of  B., 
in  tlie  county  of  S.,  gentleman,  being  a  person  regardless  of  the 
life  of  man,  and  holding  in   contempt  the  authority  and  govern- 
ment of  the  supremo  Giver  and  Disposer  of  human  life,  on 
with  force  and  arms,  at  in  the  county  aforesaid,  did  volun- 

tarily engage  in  a  duel  with  one  C  D.,  with  dangerous  weapons, 
to  wit,  with  pistols,  then  and  there  loaded  with  gunpowder  and 
leaden  bullets,  to  the  great  hazard  of  the  lives  of  them   the  said 

A.  B.  and  C.  D. ;  in  whirh  duel,  engaged  in  as  aforesaid  by 
the  said  A.  B.  and  C.  D.,  no  homicide  did  ensue  thereon; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

107.  For  challenging,  by  written  Message,  to  fight  a  Duel, 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  B., 
in  the  county  aforesaid,  gentleman,  being  a  person  of  a  malicious 
and  revengeful  disposition,  and  intending  and  designing  one 
C.  D.  wilfully  and  maliciously,  and  of  his  malice  aforethought, 
to  kill  and  murder,  on  the  day  of  now  last  past,  at 

B.  aforesaid,  in  the  county  aforesaid,  did  unlawfully  and  ma- 
liciously, by  written  message,  provoke,  excite,  and  challenge  him 
the  said  C.  D.  to  fight  a  duel  with  him  the  said  A.  B.,  with 
dangerous  weapons,  to  wit,  with  pistols;  and  that  he  the  said 
A.  B.  a  certain  challenge,  in  the  name  of  him  the  said  A.  B., 
and  in  the  form  of  a  written  message  to  hiio  the  said  C.  D.  di- 
rected, exciting  and  provoking  him  the  said  C.  D.  to  fight  a  duel 
with  the  said  A.  B.,  did  then  and  there  wilfully  and  maliciously 
write  and  direct,  and  cause  to  be  written  and  directed,  which 
said  challenge  and  written  message  is  as  follows,"  to  wit,  \liere 
insert  a  copy  of  the  message  icith  p'oper  inuendocs,  if  required  f\ 
and  that  he  the  said  A.  B.  the  said  written  message  did  then  and 
there  wilfully  and  maliciously  send  and  deliver,  and  cause  and 
procure  to  be  sent  and  delivered  to  the  said  C.  D.,  no  duel  be- 
ing or  having  been   fought  thereon  ;    against  the   peace  of  said 

'  This  and  the  four  following  precedents  are  original  by  the  author,  and  are 
drawn  upon  the  sixth  and  seventh  sections  of  the  Statute  of  Massachusetts  of 
1804,  c.  123,  §  6,  and  are  such  as  have  been  used  and  sanctioned  in  and  by 
the  Supreme  Judicial  Court  of  that  state. 

■^  If  the  message  or  a  copy  of  it  cannot  be  procured,  then  say,  "  which  said 
challenge  and  written  message  was  then  and  there  concealfed  and  destroyed 
by  the  said  A.  B.  or  some  other  person,  to  the  jurors  aforesaid  unknown,  so  that 
jhey  cannot  set  foith  the  tenor  or  the  substance  thereof." 

12 


90  CHALLENGING  TO  FIGHT. 

Commonwcnitli,  and  contrary  to  the  form  of  ilic  statute  in  such 
case  made  and  provided. 

J  08.  For  being  a  Second  in  a  Duel. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  B., 
in  the  county  aforesaid,    gentleman,   on  vviih   force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  did  voluntarily  en- 
gage in  a  duel  with  one  C.  D.,  with  dangerous  weapons,  to  wit, 
with  pistols,  then  and  there  loaded  wiiii  gunpowder  and  leaden 
bullets,  to  the  great  hazard  of  the  lives  of  the  said  A.  B.  and 
C.  D.,  in  which  duel,  engaged  in  as  aforesaid,  no  homicide  did 
ensue  thereon  ;  and  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  E.  F.,  of  B.,  in  the  county  afore- 
said, gentleman,  being  a  person  regardless  of  the  life  of  inan,  and 
holding  in  contempt  the  authority  and  government  of  the  su- 
preme Giver  and  Dis])oser  of  hmnan  life,  on  the  said  day 
of  in  the  year  aforesaid,  wiili  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  did  knowingly  and  voluntarily  be- 
come, and  then  and  there  knowingly  and  voluntarily  was,  the 
second  of  the  said  C.  D.,  and  was  then  and  there  knowingly  and 
volimtarlly  an  agent  and  abetter  of  him  the  said  C  D.  in  the 
duel  and  challenge  aforesaid  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

109.  For  being  a  Second  to  a  Person  giving  a  Challenge,  when 
no  Duel  is  fought. 

\^Draw  the  indictment  for  sending  the  challenge  according  to 
the  precedent,  Ao.  103,  and  then  go  on.]  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  tliat  E.  F.,  of 
B.,  in  the  county  aforesaid,  gentleman,  on  the  said  day  of 

in  the  year  aforesaid,  at  B.,  in  the  county  aforesaid,  did 
become,  and  then  and  there  voluntarily  and  knowingly  was  a 
second,  agent,  and  abetter  of  him  the  said  A.  B.,  in  the  giving, 
sending,  and  delivering  of  the  challenge  and  message  aforesaid, 
from  him  the  said  A.  B.  to  the  said  C.  D.  ;  against  the  peace 
he.,  and  contrary  to  the  form  of  the  statute  Sic. 

110.  For  accepting  a  Challenge  when  no  Duel  ensued. 

The  jurors  &tc.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,   gentleman,  on  at  in   the 

county  aforesaid,  did  accept  a  challenge  to  fight  a  duel  with  one 
C.  D.,   and  did   ilien  and  there  consent  to  fight  therein  with  the 


CHEATS.  91 

said  C.  D.,  with  dangerous  weapons,  to  wit,  with  pistols,  loaded 
with  gunpowder  and  leaden  hullets,  to  the  hazard  of  the  lives  of 
them  the  said  A.  13.  and  C.  D.,  which  challenge  the  said  C.  D. 
had,  before  that  time,  sent,  given,  and  delivered,  and  caused  and 
procured  to  he  sent,  given,  and  delivered  to  the  said  A.  B.  to 
light  said  duel,  hy  message  for  that  purpose,  upon  which  chal- 
lenge no  duel  did  ensue  ;  against  the  peace  he,  and  contrary  to 
the  form  of  liie  statute,  he. 

111.  For  Icing  a  Second  to  a  Person  accepting  a  Challenge, 
ivhen  no  Duel  i^  fought. 

[^Draiv  the  indictment  for  accepting  the  challenge,  according  to 
the  next  preceding  precedent,  jVo.  1  lU,  and  then  proceed.^  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  E.  F..  of  IJ.,  in  the  county  aforesaid,  gentleman,  on  the 
said  day  of  in  the  year  aforesaid,   at    M.    aforesaid, 

in  die  county  aforesaid,  did  become  and  was  a  second,  agent, 
and  abetter  of  him  the  said  C.  D.,  in  such  acceptance  of  the 
challenge  aforesaid  ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

Champerty. — See  "  Maintenance." 


CHEATS. 

1 12.  Indictment  at  Common  Law  for  selling  by  false  Scales.* 

The  jurors  &tc.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  trader,  on   the  day  of  and 

from  thence  until  the  day  of  the  taking  of  this  inquisition,  at  B., 
in  the  county  aforesaid,  did  use  and  exercise  the  trade  and  busi- 
ness of  a  shopkeeper,  and  during  that  time  did  deal  in  the  buy- 
ing and  selling  by  weight  of  divers  goods,  wares,  and  merchan- 
dises. And  the  said  A.  B.,  contriving  and  fraudulently  intending 
the  citizens  of  the  said  Commonwealth  to  cheat  and  defraud 
during  the  time  he  exercised  the  said  trade  and  business,  to  wit, 
on  at  did  knowingly,  wilfully,  and  publicly  keep,  in 

•  Stark.  467,  408;  3  Chitt.  1000  ;  Trem.  P.  C.  103,  106  ;  Cro.  C.  C.  282   (7th . 
ed.)  ;   Id.  283,  selling  brass  chain  for  gold. 


92  CHEATS. 

a  certain  shop  ilicrc,  wlicrcin  he  carried  on  his  snid  trade  and 
business,  a  certain  pair  of  false  scales  for  the  weighing  of  goods, 
wares,  and  merchandises,  hy  him  sold  in  the  way  of  his  trade  ; 
which  said  scales  were  then  and  there,  by  artfnl  and  deceillul 
means,  so  made  and  constrncted  as  to  cause  the  goods,  wares, 
and  merchandises,  weighed  therein  and  sold  thereby,  to  appear 
of  greater  weight  than  the  real  and  true  weight,  by  one  eighth 
part  of  such  apparent  weight ;  and  that  the  said  A.  13.,  well 
knowing  the  said  scales  to  be  false,  and  so  constructed  and  made, 
on  at  did  knowingly  and   fraudulently   sell   to  one 

C.  D.  certain  goods  in  the  way  of  his  trade,  to  wit,  a  large 
quantity  of  flour,  weighed  in  and  by  the  said  false  scales,  as  and 
lor  one  hundred  pounds  of  flour,  whereas,  in  truth  and  in  fact, 
the  weight  of  said  flour,  so  weighed  and  sold  as  aforesaid,  was 
short  and  deficient  of  the  said  weight  of  one  hundred  pounds  by 
one  eiglilh  part  of  the  weight  of  one  hundred  pounds  ;  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

1 13.  Fo7-  defrauding  a  Person  by  means  of  a  counterfeit  Letter 
and  other  false  Tokens:    On  the  Statute  of '32  II.  8.  c.  1.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  yeoman,  devising  how  he   might  unlaw- 
fully and  fraudulently  obtain  the  monies  of  the  honest  citizens  of 
said  CommonweaUh,  on  at  did   falsely  and  deceit- 

fully pretend  and  affirm  to  one  C.  D.,  that  his  the  said  A.  B.'s 
name  was  E.  F.,  and  that  he  was  the  son  of  one  G.  H.,  and  that 
the  said  A.  B.  a  certain  false  and  counterfeit  letter,  in  the  name 
of  him  the  said  G.  H.,  as  a  true  and  genuine  letter  of  him  the 
said  G.  H.,  falsely,  deceilfidly,  and  fraudulently,  to  him  the  said 
C.  D.  then  and  there  did  deliver,  the  said  G.  H.  being  then  and 
long  before  the  friend  and  intimate  acquaintance  of  him  the  said 
C.  D. ;  by  which  said  false  and  counterfeit  letter  it  was  stated 
and  nienlioned,  [Afre  insert  the  letter,  or  the  material  part  of  it, 
with  proper  inuendoes,  if  the  letter  requires  it ;]  and  that  the 
said  C.  D.,  then  and  there  believing  the  said  false  and  counter- 
feit letter  to  be  the  proper  hand-writing  of  him  the  said  G.  H., 
did  then  and  there  [Acre  iyisert  what  ivas  obtained  and  done  by 
means  of  the  countejfeit  letter  ;]  whereas,  in  truth  and  in  fact,  the 
said  G.  H.  never  did  write  or  send,  or  cause  to  be  written  or 
sent,  any  such  letter  to  him  the  said   C.  D.,    desiring  him   [here 

1  See  similar  precedents  in  Stark.  469  ;  Cro.  C.  C.  278  (6th  ed.) ;  3  Chitt. 
1004.  The  prefatory  averments  in  these  precedents,  "  evil  disposed  person, 
&c."  are  omitted  as  superfluous. 


CHEATS.  93 

repeat  the  substance  of  the  letter  {]  by  means  whereof,  and  of  all 
which,  the  said  A.  B.,  by  means  of  the  said  counieiTeit  letter, 
and  by  the  said  false  tokens  and  pretences,  milawfully,  falsely, 
fraudulently,  and  deceitfully,  did  obtain  and  get  into  his  hands 
and  possession,  of  and  from  the  said  C.  D.,  the  said  [jicre  de- 
scribe the  property  obtained,^  in  n)anner  and  form  aforesaid  ; 
and  the  said  C.  D,  of  the  said  [^the  property  obtained,^  in  man- 
ner and  form  aforesaid,  then  and  there  fraudulently  and  deceit- 
fully did  deceive,  cheat,  and  defraud  ;  against  the  peace  and 
dignity  of  the  Commonwealth  aforesaid,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided.^ 

114.  For  obtaining  Goods  of  a  Shopkeeper,  "under  Pretence  of 
being  Servant  to  a  Customer.^ 

,  T'l'c  ju/Oi's  &Q.,  uj)on  their,  cath  ^)u;sci\t,  that  A.  B.,  of  B.,  in 
the  county  alcresaid,  laborci,  contrising  and  intending  one  CD., 
ofB.  aforesaid,- sho;^3keeper^  'j:i!a.wf;illy,  fraudulently,  and  de- 
ceitliiJiy,  oy  fa,ls(.  prji'.ei'CS^,,  i.0  cl,et;t,aud  delraud  of  his  goods, 
wares,  and  mercliandises,  on  at  aforesaid,  unlawful- 

ly, knowingly,  .and  dfs'fgocdly,  did  falsely  pretend  to  the  said 
C.  D.,  that  he-  tiij&  said/A;  B.  then  was  the  servant  of  one  E.  F., 
of  tailor,  (the  said  E.  F.  then,  and  long  before,  being  well 

known  to  him  the  said  C.  D.,  and  a  customer  of  him  the  said 
C.  D.,  in  his  said  business  and  way  of  trade  ;)  and  that  he  the 
said  A.  B.  was  sent  by  the  said  E.  F.  to  the  said  C.  D.  for  five 
yards  of  superfine  woollen  cloth  ;  by  which  said  false  pretences 
the  said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and  de- 
signedly obtain  from  the  said  C.  D.  five  yards  of  superfine  wool- 
len cloth,  of  the  value  of  fifty  dollars,  of  the  goods,  wares,  and 
merchandises  of  him  the  said  C.  D.,  with  intent  him  the  said 
C.  D.  then  and  there  to  cheat  and  defraud  of  the  same  ;  where- 
as, in  truth  and  in  fact,  the  said  A.  B.  was  not  then  the  servant 
of  the  said  E.  F.,  and  was  not  then,  or  ever  had  been,  sent  by 
the  said  E.  F.  to  the  said  C.  D.  for  the  said  cloth,  or  for  any 
cloth  whatever ;  to  the  great  damage  and  deception  of  the  said 

*  See  the  case  of  Commonwealth  vs.  Warren,  G  Mass.  R.  72,  where  it  is 
decided  that  the  statute  of  33  11.  8,  c.  1,  has  been  adopted  in  Massachusetts 
"  as  a  part  of  the  common  law."  There  seems  to  be  no  doubt,  that  a  forged 
letter,  similar  to  that  set  forth  in  this  precedent,  might  be  considered  ami  treated 
as  a  forged  order  "  for  the  payment  of  money  or  the  deliveiy  of  goods,"  and 
proceeded  upon  as  a  forgery. 

*  See  similar  precedents  in  3  Chitt.  1005;  Stark.  474,;  Cro.  C.  C.  305,  (6th 
ed.) 


94  CHEATS. 

C.  D.,  ngainst  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided.^ 

115.  For  ohtaining   Goods  under  pj'ctence  of  being  jyierchants 
of  Property  and  Credit.'^ 

The  jurors  Sec,  upon  their  oatli  present,  that  A.  B.  and  C.  D., 
both  of  in   the   county  aforesaid,  laborers,  contriving  and 

intending  unlawfully,  fraudulently,  designedly,  deceitfully,  and  by 
false  pretences,  to  cheat  and  defraud  one  E.  F.  of  his  goods  and 
merchandises,  on  at  in  the  county  aforesaid,  did  falsely, 

knowingly,  and  designedly  pretend  to  the  said  E.  F.  that  the  said 
C.  D.  then  was  a  merchant  of  great  property,  who  wanted  to 
purchase  horses  in  order  to  export  and  send  them  abroad,  and 
that  he  then  was  a  boi)sel^ee[)er  _at  P.,  in  thecounty  of 
whereas  in  truth  and  i,n  lviGt,;tne'sviid  C  D.  was  no.t  Jl(en„a  rnt^i- 
chant  of  great  property  who'wanied  io  purchase  herscs  fn'order 
to  send  them  abroad;  no--  wcs  he  then  a  housekeeper  atP  afore- 
said, as  the  said  A.  B.  {iMd,p.  D.  ihan-ano  Uie.rQ  tajseivf  .pre- 
tended to  the  said  E.  F. ;  and  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  tlie  siid  A .  B.  and  C.  D., 
by  the  false  pretences  aforesaid,  did'then^  &nd-  d'ere  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  E.  F.  one  mare 
of  the  value  of  fifty  dollars,  and  six  geldings  of  the  value  of  three 
hundred  dollars,  with  intent  then  and  there  to  cheat  and  de- 
fraud the  said  E.  F.  of  the  same ;  against  the  peace  of  said 
Commonwealth,  and  coiitrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

'  This  precedent  concludes  contra  formam  statuti.  The  statute  of  30  Geo. 
2,  c.  24,  has  never  been  adopted  in  Massachusetts  ;  but  the  statute  of  that  state 
of  1815,  c.  136,  "  For  the  Suppression  and  Punishment  of  Cheats,"  is  substan- 
tially in  the  same  language  as  the  above  mentioned  statute  of  30  Geo.  2. 

^  3  Chitt.  1006,  in  which  precedent  there  is  a  second  count,  omitting  the 
words  that  defendant  "  wanted  horses  to  send  them  abroad,"  and  a  third  count 
omitting  the  false  pretence  of  residence.  The  facts  set  forth  in  this  precedent 
would  amount  to  a  fraudulent  conspiracy  at  common  law. 

See  similar  precedents  in  Cro.  C.  C.  303,  (6th  Ed.)  ;  Stark.  473,  in  which  the 
false  pretences  are  negatived  in  the  conclusion  of  the  indictment,  as  is  most 
usual. 


CHEATS.  95 


116.  Fo7'  obtaining  Money  by  draiving  upon  a  Person  whom 
the  Defendant  pretended  ivas  indebted  to  him  and  was  a  Per- 
son of  Property.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
yeoman,  contriving  and  intending  unlawfully,  fraudulently,  know- 
ingly,  and    designedly,  and    by  false   pretences,  to  cheat   and 
defraud    one  C.   D.    of   his  money,  on  at  in   the 

county  aforesaid,  unlawfully,  fraudulently,  knowingly,  and  de- 
signedly, did  falsely  pretend  to  the  said  C.  D.,  that  one  E.  F. 
was  a   person   of  property  and  credit,  residing  at  in  the 

county  of  and  that  divers  large  sums  of  money  were  due 

and  owing  to  him  the  said  A.  B.  from  the  said  E.  F.,  and  that 
the  said  E.  F.  would  accept  and  pay  a  certain  bill  of  exchange 
according  to  the  tenor  thereof,  then  and  there  drawn  by  the  said 
A.  B.  upon  the  said  E.  F.,  and  dated  the  day  and  year  last 
aforesaid,  and  whereby  the  said  A.  B.  required  the  said  E.  F. 
to  pay  to  him  the  said  C.  D.  or  order,  the  sum  of  one  hundred 
dollars,  in  six  days  after  date  thereof,  and  to  place  the  same  to 
account  of  him  the  said  A.  B.,  and  then  and  there  delivered 
the  same  to  the  said  C.  D. ;  which  said  bill  of  exchange  is  of 
the  purport  and  effect  following,  to  wit,  [here  set  forth  the  bill  ;'\ 
by  which  said  false  pretence,  the  said  A.  B.  did  afterwards,  to 
wit,  on  the  same  day  and  year  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  unlawfully,  knowingly,  and  designedly,  obtain 
from  the  said  C.  D.  the  said  sum  of  one  hundred  dollars,  of  the 
monies  of  him  the  said  C.  D.,  with  intent  then  and  there  to 
cheat  and  defraud  him  of  the  same  ;  whereas  in  truth  and  in 
iact  the  said  E.  F.  was  not  then  a  person  of  property  residing 
at  said  and  whereas  in  truth  and  in  foct  there  were  not 

then  divers  large  sums  of  money  due  from  said  E.  F.  to  said 
A.  B.,  and  the  said  E.  F.  would  not  and  could  not  pay  the 
said  bill  of  exchange,  or  any  part  of  the  money  therein  men- 
tioned, but  was  then  wholly  insolvent  and  unable  to  pay  the 
same,  all  which  the  said  A.  B.  then  and  there  well  knew  ;  against 
the  dignity  of  the  Commonwealth,  and  contrary  the  form  of  the 
statute  in  such  case  m^de  and  provided. 

'  Stark.  471 ;  the  words  "  to  support  his  profligate  way  of  life,"  are  omitted  as 
unnecessary.     Id.  note  (/.) 


96  CHEATS. 


117.  For  obtaining  a  Note  under  pretence  of  inspecting  it,  and 
then  cancelling  and  destroying  it.^ 

The  jurors  8cc.,  upon  their  oath  present,  that  A.  B  ,  of 
in  the  county  of  laborer,  contriving  and  intending  fraudu- 

lently, knowingly,  and  designedly,  and  by  false  pretences,  one 
C.  D.  to  cheat  and  defraud  of  a  certain  promissory  note  of 
hand  for  the  payment  of  money,  and  of  the  money  lawfully  due 
thereon,  and  to  obtain  and  get  into  his  hands  and  possession  from 
the  said  C.  D.  the  said  promissory  note,  with  the  intent  and 
purpose  knowingly  and  designedly  to  cancel,  obliterate,  and  de- 
stroy the  same,  on  at  did  falsdy,  knowingly,  and 
designedly  prctentl  to  the  said  C.  D.,  that  if  he  the  said  C.  D. 
would  permit  him  the  s:iid  A.  15.  to  examine  and  inspect  a  cer- 
tain promissory  note  for  the  payment  of  money,  signed  with  the 
proper  hand-writing  of  him  the  said  A.  B.,  bearing  date  the 
day  of  then  before,  by  which  note  the  said  A.  B. 
promised  to  pay  the  said  C  D.,  or  his  order,  the  sum  of 
dollars,  in  one  month  after  the  date  of  the  same,  for  value  re- 
ceived of  him,  [ilescribe  the  note  truly,  according  to  the  fact,  or 
insert  a  copy  of  it  in  the  indictment,  if  a  copy  had  been  7-etained,^ 
that  he  the  said  A.  B.  would  then  and  there  examine  and  inspect 
said  note,  and  then  and  there  immediately  redeliver  the  same 
note  to  the  said  C.  D.  ;  and  that  he  the  said  A.  B.  afterwards, 
to  wit,  on  the  said  day  of  in  the  year  aforesaid,  at 
B.  aforesaid,  by  means  of  the  false  pretences  aforesaid,  did  ac- 
quire and  obtain  the  said  note  from  the  said  C.  D.,  and  did  then 
and  there  in  the  county  aforesaid,  fraudulently,  knowingly,  and 
designedly  cancel,  tear,  obliterate,  and  destroy  the  same,  (the 
said  sum  of  dollars,  in  the  said  note  expressed,  being  Uien 
and  there  due  and  unpaid,  and  the  said  C.  D.  being  then  and 
there  the  owner  and  propi'ietor  thereof,)  with  intent,  him  the 
said  C.  D.  then  and  there  knowingly,  designedly,  and  fraudulent- 
ly, to  cheat  and  defraud  of  the  monies  due  on  the  same ;  where- 
as, in  truth  and  in  fact,  the  said  A.  B.  did  not  intend  to  redeliver 

'  Cro.  C.  C.  288  (6th  Ed.)  I  find  no  precedent  similar  to  this  either  in  Tre- 
maine,  Chitty,  or  Starkle.  I  have  changed  the  manner  of  alleging  the  facts, 
as  they  are  stated  in  the  precedent  in  Cro.  C.  C.  It  is  there  drawn  at  common 
law.  The  object  being  to  bring  the  offence  within  the  statutes  for  the  sup- 
pression of  cheats ;  but  this  indictment  would  be  also  good  at  common  law. 
There  probably  is  no  doubt,  that  if  it  were  the  intention  of  the  defendant  to 
destroy  the  note  at  the  time  he  obtained  it,  by  the  false  pretences,  it  would 
amount  to  larceny. 


COMPOUNDING    A    FELONY.  97 

the  said  note  to  the  said  C.  D.  after  he  had  examined  and  in- 
spected the  same ;  but  then  and  there  obtained  the  possession  of 
the  same  note  in  manner  and  form  aforesaid,  with  intent  fraudu- 
lently, knowingly,  and  designedly  to  cancel,  tear,  obliterate,  and 
destroy  the  same  ;  against  the  peace  of  said  Commonw'caith, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.^ 

Coin.  —  See  "  Forgerv  and  Counterfeiting." 


COMPOUNDING  A  FELONY. 

1 18.  For  compouncUiig  a  Felony.^ 

The  jurors  &ic.,  upon  their  oath  present,  that  A.  B.,  of  B., 
in   the  county   aforesaid,   yeoman,  on  tiie  day  of 

now  last  past,  at  aforesaid,  in  the  county  aforesaid,  catne 

before  C.  D.,  Esquire,  then  and   yet  being  one  of  the  justices  of 
the  peace  in  and    for  the  said  county  of  duly  and  legally 

authorized  and  qualified  to  execute  and  perform  the  duties  of 
that  ofiice ;  and  then  and  there,  upon  his  oath,  did  charge,  ac- 
cuse, and  complain  against  one  E.  F.  for  feloniously  stealing 
[here  set  forth  the  complaint  to  the  justice  ;  ]  upon  which  accu- 
sation and  complaint,  the  said  C.  D.,  Esquire,  issued  his  warrant 
under  his  hand  and  seal,  in  due  form  of  law,  for  the  apprehend- 
ing and  taking  the  said  E.  F.  to  answer  to,  and  be  examined  and 
dealt  with  touching  and  concerning  the  felony  aforesaid,  so  as 
aforesaid  charged  upon  him  the  said  E.  F.,  as  to  law  and  justice 
might  appertain.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  afterwards,  to  wit,  on  the 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 

aforesaid,  the  said  E.  F.  was  duly  arrested  and  taken  by  virtue 

•  There  are  a  great  variety  of  other  precedents  in  the  English  books  of  pre- 
cedents of  indictments,  for  cheats,  frauds,  &.c.  Those  in  Trem.  P.  C.  were  all 
drawn  before  the  statute  of  30  Geo.  2,  c.  24,  was  enacted,  and  do  not  conform 
to  the  terras  of  that  statute. 

2  See  other  precedents,  2  Chitt.  220;  Cro.  C.  C.  223  (Gth  Ed.);  4  Wentw. 
327  ;  Stark.  679.  The  form  in  the  last  edition  of  Cro.  d.  C.  is  more  concise 
than  that  in  prior  editions,  and  the  other  precedents  above  referred  to,  2  Chitt. 
220,  note  {k.) 

13 


98  COMPOUNDING    A    FELONY. 

of  the  said  warrant,  for  the  felony  aforesaid  ;  and  was  then  and 
there  carried  before  the  said  C.  D.,  Esquire,  the  justice  afore- 
said, and  was  then  and  there  examined  by  him  the  said  justice 
of  and  concerning  the  felony  aforesaid  ;  and  the  subject-matter 
of  said  complaint  was  examined  into  and  heard  by  the  said  jus- 
tice. Upon  which  said  examination  and  hearing,  the  said  C.  D., 
Esquire,  did  then  and  there  make  a  certain  warrant,  under  his 
hand  and  seal,  in  due  form  of  law,  directed  to  the  keeper  of  the 
Commonwealth's  gaol  in  said  B.,  or  his  under  keeper  or  deputy  ; 
thereby  commanding  the  aforesaid  keeper  or  his  deputy  to  re- 
ceive into  his  custody  the  body  of  the  said  E.  F.,  so  charged 
with  such  felony  as  aforesaid,  and  him  in  custody  safely  to  keep, 
until  he  should  be  discharged  by  due  course  of  law.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  A.  B.,  well  knowing  die  premises,  but  contriving 
and  intending  unlawfully  and  unjustly  to  pervert  the  due  course 
of  law  in  this  behalf,  and  to  cause  and  procure  the  said  E.  F. 
for  the  felony  aforesaid  to  escape  with  impunity,  afterwards,  to 
wit,  on  at   &lc.,   unlawfully   and   for  the  sake  of  private 

gain,  did  take  upon  himself  to  compound  the  said  felony  on  be- 
half of  the  said  E.  F.,  and  then  and  there  did  exact,  receive, 
and  have  of  the  said  E.  F.  the  sum  of  dollars,  for  and  as 

a  reward  for  compounding  the  said  felony,  and  for  desisting  from 
all  further  prosecution  against  the  said  E.  F.  for  the  same  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

119.  For  compounding  an  Offence  against  a  penal  Statute} 

The  jurors  Stc,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  yeoman,  heretofore,  to  wit,  on  the 
day  of  prosecuted  out  of  the  court  of  Common  Pleas, 

&z;c.,  {here  state  the  style  of  the  court,  and  for  ivhat  countij  it  loas 
to  he  holden,']  a  certain  writ  against  one  C.  D.,  directed  to  the 
sheriff  of  [here  recite  the  ivrit.^    And  the  jurors  aforesaid, 

upon  their  oath  aforesaid,  do  further  present,  that  the  said  writ, 
so  sued  out  as  aforesaid  by  the  said  A.  B.,  was  by  him  sued 
out  with  intent  to  declare  against  the  said  C.  D.  in  the  same 
court,  in  a  plea  of  debt  for  a  certain  penalty  supposed  to  have 
been  incurred  by  the  said  C.  D.,  by  reason  of  his  the  said  C.  D's 
having  before  that  time,  \_here  insert  the  facts  upon  which  the 
penalty  is  supposed  to  have  accrued,  ichich  may  be  taken  from  the 
declaration  in  the  writ  before  recited ;  ]  against  the  form  of  the 
statute  in  such  case   made  and  provided.     And  the  jurors  afore- 

»  See  similar  precedents  in  2  Chitt.  227  ;  4  Wentw.  399. 


C0N6PIRACT. 


99 


said   upon  their  oath  aforesaid,  do  further  present,  that  the  said 
A.  li.,  not  regarding  the  statute  in  that  case  made  and  provided 

r^r  .1^^  ,  /foresaid,  in  the  county  aforesaid,  unlawfully,' 
and  for  the  sake  of  pnvate  gain,  did  take  upon  himself  to  coni- 
pound  and  agree  w.th  the  said  C.  D.  for  the  snid  offence,  without 
he  order  or  consent  ol  snid  court,  out  of  wliich  the  said  writ 
was  issued  as  aforesa.d  ;  and  then  and  there  unlawfully  did 
exact,  receive,  and  have  of  and  from  the  said  C.  D.  the  sum  of 
dollars,  as  and  for  a  reward  for  compounding  with  the 
said  C.  U.,  for  the  said  offence,  and  desisting  from  further  pros- 
ecutmg  his  said  suit;  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid.^ 


CONSPIRACY. 


120.  For  a  Conspiracy  to  charge  a  Man  with  a  Rape,  with 
Intent  to  obtain  Money  from  him.^ 

.u^\^  j"'-«rs  for  said  Commonwealth,  upon  their  oath  present, 
tnat  A.  J3.,  ol  in  the  county  of  yeoman,  and  C.  D., 

the  vvne  of  the  said  A.  B.,  and  E.  F.,  of  said  yeoman 

devismg  and  intending,  unjustly  and  maliciously,   to   deprive  one' 
I  r'°Tj      ^,      "''"'^  ^""^  character,  and  to  subject  him   the 
said  Lr   H,  without  any  just  cause,  to  the   punishment   by  law 
inflicted  for  the  crime  of  rape,  on  at  in  the  county 

aforesaid,  falsely,  unlawfully,  wickedly,  and  maliciously,  did 
combine,  conspire,  confederate,  and  agree  toaeiher,  falsely  to 
charge  and  accuse,  and  then  and  there  in  pursuance  of  said 
conspiracy,  combination,  and  agreement,   did   falsely  charge  and 

'  This  offence  is  created  by  statute  16  Eliz.  ;  but  it  is  presumed  to  be  also  an 
ollence  at  common  law. 

'  There  are  precedents  for  this  offence  in  3  Chitt.  1183;  Stark.  690;  and 
Cro.  C.  C.  240,  (Gth  Ed.),  which  are  merely  copies  of  each  other.  Those 
parts  of  them  which  consist  of  averments  of  overt  acts,  matters  of  inducement 
&c.,  seem  to  render  them  unnecessarily  prolix  ;  and  are,  therefore,  not  re- 
tamed  m  the  following  precedents.  The  authorities  for  rejecting  this  superflu- 
ous matter  were  collected,  stated,  and  relied  upon  in  the  case  of  The  Com- 
monwealth  v.  Judd  et  al,  2  Mass.  R.  329,  and  are  as  follows  ;  9  Rep.  56,  3d    ,  . 

w'  r«      iff''  ''^''^-''^-^  3  Burr.  1330 ;  1  Lev.  125  ;lKeb.  203  ;l  Vent.     -^- 
304 ;  1  Str.  193 ;  1  Salk.  174 ;  8  Mod.  11  ;  1  Leach  C.  CUt 


100  CONSPIRACY. 

accuse  hlin  the  said  G.  H.,  that  he  had  then  lately  before  felo- 
niously ravished  and  carnally  known  the  said  C.  D.  by  force  and 
against  her  will ;  with  intent  unjustly  to  obtain  and  acquire  of 
and  from  him  the  said  G.  11.,  to  tliem  the  said  A.  B.,  C.  D., 
and  E.  F.  divers  sums  of  money  for  compounding  the  said  pre- 
tended felony  and  rape,  so  as  aforesaid  falsely,  wickedly,  and 
maliciously  charged  upon  him ;  against  the  peace  and  dignity  of 
the  Commonwealth  aforesaid. 

121.  For  a  Conspiracy  to  charge,  a  Man  ivith  receiving  stolen 
Goods,  knowing  them  to  be  stolen,  and  obtaining  Money  for 
compounding  the  same} 

The  jurors  &c.,   upon  their  oath  present,  that  A.  B.   and 
C.  D.,  both  of  in  the  county  of  laborers,  wickedly 

and  maliciously  devising  and  intending  one  E.  F.  unjustly  to 
deprive  of  his  good  name  and  character,  and  also  Iraudulently  to 
oblain  and  acquire  to  themselves,  of  and  from  the  said  E.  F., 
divers   sums  oi"  money,  on  the  day  of  at       ^      in 

the  county  aforesaid,  did  wickedly,  fraudulently,  and  maliciously 
conspire,  combine,  confederate,  and  agree  among  themselves, 
falsely  to  charge  and  accuse,  and  in  pursuance  of  said  conspira- 
cy, combination,  confederacy,  and  agreement,  did  then  and  there 
falsely  charge  and  accuse  the  said  E.  F.,  that  he  had  then  lately 
before  received  certain  stolen  goods,  which  had  then  lately  before 
been  feloniously  stolen,  taken,  and  carried  away,  knowing  them 
to  be  stolen  ;  and  that  they  the  said  A.  B.  and  C.  D.,  by  divers 
threats  and  menaces  of  them  the  said  A.  B.  and  C.  D.  made 
and  uttered  in  pursuance  of  the  said  conspiracy,  combination, 
confederacy,  and  agreement  aforesaid,  so  as  aforesaid  had  between 
them  the  said  A.  B.  and  C.  D.,  that  the  said  E.  F.  should  be 
prosecuted  and  punished  as  a  receiver  of  stolen  goods,  knowing 
them  to  be  stolen,  afterwards,  to  wit,  on  the  said  day  of 

in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
did  demand,  receive,  and  take  the  sum  of  fifty  dollars  of  him  the 
said  E.  F.,  for  and  as  a  composition  of,  and  agreement  not  to 
prosecute  the  said  pretended  offence,  and  to  discharge  him  the 
said  E.  F.  from  all  further  prosecution  for  the  same  ;  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

J  See  similar  precedents  in  8  Chitt.  1181 ;  Stark.  692;  Cro.  C.  C.  243,  (6th 
Ed.)  These  precedents  are  also  transcripts  of  each  other;  the  superfluous 
matter  in  which,  is  not  retained  in  this  precedent  for  the  reasons  and  upon  the 
authorities  stated  and  referred  to  in  note  (2)  to  the  preceding  precedent. 


CONSPIRACY.  101 

122.  For  a  Conspiracy  among  Workmen  to  raise   their  Wages 

arid  lessen  the  Time  of  Labor} 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F  ,  all   of  in  the  county  of  laborers,  on  the 

day  of  now  last  past,  at  B.  aforesaid,  in  the  county 

aforesaid,  being  all  workmen  and  journeymen  in  the  art  and 
manual  occupation  of  a  wheelwright,  not  being  content  to  work 
and  labor  in  that  art  and  occupation  by  the  usual  number  of 
hours  in  each  day,  and  at  the  usual  rates  and  prices,  for  which 
they  and  other  journeymen  and  workmen,  in  the  said  art  and 
occupation,  were  accustomed  to  work  and  labor,  but  falsely  and 
fraudulendy  conspiring  and  combining  unjustly  and  oppressively 
to  increase  and  augment  the  wages  of  themselves  and  other  jour- 
neymen and  workmen  in  the  said  art,  and  unjustly  to  exact  and 
extort  great  sums  of  money  for  their  labor  and  hire  in  their  said 
art,  mystery,  and  manual  occupation,  from  their  employers  who 
employ  them  therein,  on  the  same  day  and  year  aforesaid,  at 
B.  aforesaid,  in  the  county  aforesaid,  together  with  divers  other 
workmen  and  journeymen  in  the  same  art  and  manual  occu- 
pation, (whose  names  are  to  the  jurors  aforesaid  unknown,)  un- 
lawfully did  assemble  and  meet  together,  and  so  being  assem- 
bled and  met,  did  then  and  there  unlawfully  and  corruptly 
conspire,  combine,  confederate,  and  agree  together  and  among 
themselves,  that  none  of  Uie  said  conspirators,  after  the  same 
day  of  would  work  at  any  lower  or  less  rate  than  one 

dollar  for  the  hewing  of  every  hundred  sj)okes  for  wheels,  and 
two  dollars  for  making  every  pair  of  hinder  wheels,  for  or  on 
account  of  any  person  or  employer  whatsoever  in  the  said  art 
and  occupation  ;  and  also  that  none  of  the  said  conspirators 
would  work  day  work  or  labor  any  longer,  than  from  the  hour  of 
sis  in  the  morning  till  the  hour  of  seven  in  the  evening  in  each 
day  from  thenceforth  ;  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 

123.  For  a  Conspiracy  to  charge  a  JS'lan  with  being  the  Father 

of  a  Bastard  Child.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  in  the  county  of  laborers,  on  the 

»  See  similar  precedents  in  Stark.  694;  3  Chitt.  1163;  Cro.  C.  C.  249, 
(6th  Ed.)  These  are  precedents  at  common  law  ;  but  it  is  sai^  they  would  be 
good  upon  the  statute  of  2  &  3  Edw.  6,  if  concluded  contra  formam  statufi. 

'  See  a  long  precedent  for  a  conspiracy  of  this  description  in  Stark.  698,  and 
the  authorities  referred  to  in  note  (a.) 


102  CONSPIRACY. 

day  of  at   B.  aforesaid,  in  the  county  aforesaid, 

did  unlawfully  conspire,  combine,  confederate,  and  agree  among 
themselves,  falsely  and  mnliciously,  and  without  any  just  cause, 
and  for  the  sake  of  unlawful  and  unjust  gain,  to  charge  one  G.  H. 
with  the  crime  of  adultery  ;  and  also  to  obtain  and  extort  from 
the  said  G.  H.  divers  large  sums  of  money  by  unlawful  ways 
and  means ;  and  that  they  the  said  A.  B.,  C.  D.,  and  E.  F.,  in 
pursuance  of,  and  according  to  the  conspiracy,  combination, 
confederacy,  and  agreement  aforesaid,  so  as  aforesaid  had  among 
themselves,  afterwards,  to  wit,  on  the  same  day  of 

in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
unlawfully,  falsely,  and  maliciously,  and  for  the  sake  of  unlawful 
and  unjust  gain,  did  charge  and  accuse  the  said  G.  H.,  that  he 
the  said  G.  H.  then  lately  before,  had  carnal  knowledge  of  the 
body  of  one  1.  J.,  and  was  the  reputed  father  of  a  certain  ille- 
gitimate child,  born  of  the  body  of  her  the  said  I.  J.,  he  the  said 
G.  H.  being  then  and  there  a  married  man,  and  having  a  lawful 
wife  alive  ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

124.  For  a  Conspiracy  to  cheat  a  Man  of  his  Goods,  under  Pre- 
tence of  buying  them} 

The  jurors  «fec.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  B.,  in  the  county  of  laborers,  on 

at  did    falsely  conspire,    confederate,    and    agree   among 

themselves,  unlawfully  and  fraudulently  to  acquire  and  get  into 
ti^'eir  hands  and  possession  the  goods,  wares,  and  merchandises 
of  one  G.  H.,  under  color  and  pretence  of  buying  the  same  of 
and  from  the  said  G.  H.,  and  that,  in  pursuance  of,  and  accord- 
ing to  the  conspiracy,  combination,  confederacy,  and  agreement 
aforesaid,  they  the  said  A.  B.,  C.  D.,  and  E.  F.,  then  and  there 
falsely,  unlawfully,  and  deceitfully  did  obtain  and  acquire  of  the 
said  G.  H.  twenty  yards  of  broadcloth,  of  the  value  of  one  hun- 
dred dollars,  under  pretence  of  buying  the  same,  and  did  then 
and  there,  in  pursuance  of  the  conspiracy  &c.  aforesaid,  cheat 
and  defraud  him  thereof;  against  the  peace  &c. 

'  See  the  substance  of  this  precedent  in  Tiem.  P.  C.  91,  The  Eing  vs.  Wil- 
cox, in  which  case  it  was  prosecuted  as  a  cheat. 


CONSPIRACY.  103 

125.  For  a   Conspiracy  to  make  an  iinhntfid  and   oppressive 

Tax} 

The  jurors  &c.,  upon  their  oath  present,   that  A.  B.,   C.  D., 
and  E.  F.,  all  of  in  the  county  of  B.,  yeomen,  they  the  said 

A.  B.,  C.  D.,  and  E.  F.  having  lately  before  been  legally 
chosen  assessors  of  the  said  town  of  B.,  for  the  year  aforesaid, 
and  having  each  of  them  accepted  the  said  office,  and  having 
each  of  them  severally  qualified  themselves  according  to  law,  to 
dischari£;e  and  perform  the  duties  of  said  office,  on  at 

did  unlawfully,  falsely,  and  corruptly  conspire,  combine,  con- 
federate, and  agree  among  themselves,  by  virtue  and  color  of 
their  said  offices,  to  make  an  unlawful,  unequal,  and  oppressive 
tax  and  assesstnent  upon  the  inhabitants  of  the  said  town  of  B., 
and  upon  their  polls  and  estates;  and  that  they  the  said  A.  B., 
C.  D.,  and  E.  F.,  in  pursuance  of,  and  according  to  the  con- 
spiracy, combination,  confederacy,  and  agreement  aforesaid,  so 
as  aforesaid  had  by  and  between  them,  did  then  and  there  false- 
ly, unlawfully,  and  corrui)tly,  by  virtue  and  color  of  their  said 
offices,  proceed  to  make  and  publish  a  certain  unlawful,  unequal, 
and  oppressive  tax  and  assessment  upon  the  polls  and  estates  of 
the  inhabitants  of  said  town  of  B.,  called  the  ministerial  tax,  and 
signed  the  same  with  their  hands  in  their  capacity  of  assessors, 
as  aforesaid,  of  the  said  town  of  B.,  with  the  intent  certain  of 
the  inhabitants  of  the  said  town,  whose  names  are  to  the  jurors 
aforesaid  as  yet  unknown,  to  injure,  defraud,  and  oppress ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

126.  For  a  Conspiracy  to  defraud  an  illiterate  Person,  hy 
falsely  reading  to  him  a  Deed  of  Bargain  and  Sale,  as  and 
for  a  Bond  of  Indemnity. ~ 

The  jurors  &,c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,   all  of  in  the  county  aforesaid,  yeomen,   un- 

lawfully devising  and  intending  one  G.  H.  to  injure,  deceive,  and 
defraud,  and  him  the  said  G.  H.  fraudulently  to  deprive  of  his 
property  and  estate,  on  at  did  unlawfully  conspire, 

*  An  indictment,  from  which  this  precedent  is  copied,  was  drawn  and  pre- 
sented to  the  grand  jury  in  one  of  the  counties  of  Massachusetts,  but  "  not 
found."     The  original  is  in  the  possession  of  the  person  by  whom  it  was  drawn. 

"  This  precedent  contains  the  substance  of  an  indictment  tried  in  the  Su- 
preme Court  of  Massachusetts  for  the  county  of  Kennebeck.  The  original  in- 
dictment stated  the  manner  in  which  this  fraud  was  carried  into  effect ;  but  it 
is  not  retained  in  this  precedent,  it  being  unnecessary. 


104  CONSriRACY. 

combine,  confederate,  and  agree  among  themselves,  falsely  and 
fraudulently  to  obtain  from  the  said  G.  H.  a  deed  of  bargain  and 
sale  of  a  certain  lot  of  land  in  said  town  of  B.,  called  lot  No. 
20,  in  said  town  of  B.,  and  that,  in  pursuance  of,  and  accord- 
ing to  the  conspiracy,  combination,  confederacy,  and  agreement 
aforesaid,  so  as  aforesaid  had,  they  the  said  A.  B.,  C.  D.,  and 
E.  F.,  did  falsely  and  fraudulently  prepare,  make  out,  and  fabri- 
cate a  deed  of  bargain  and  sale  of  the  said  lot  of  land,  to  be 
signed  and  executed  by  him  the  said  G.  H.,  and  did  then  and 
there  falsely  and  fraudulently  present  the  same  to  him  the  said 
G.  H.,  and  did  then  and  there,  falsely  and  fraudulendy,  and  in 
pursuance  of  the  conspiracy,  combination,  confederacy,  and 
agreement  aforesaid,  read  the  same  to  him  the  said  G.  H.  as  a 
bond  and  obligation  for  the  sum  of  seventy  dollars,  to  be  given 
by  him  the  said  G.  H.  to  one  I.  J.  as  a  consideration,  that  he 
the  said  G.  H.  should  indemnify  the  said  I.  J.  against  the  pay- 
ment of  certain  notes  of  hand  which  he  the  said  G.  H.  had,  be- 
fore the  day  aforesaid,  made  and  given  to  one  K.  L.  ;  he  the 
said  G.  H.  being  then  and  there  an  illiterate  person,  and  by 
reason  thereof,  wholly  unable  to  read  the  deed,  so  as  aforesaid 
falsely  and  fraudulently  made  out  and  presented  to  him  ;  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

127.  For  a  Conspiracy  to  obtain  Goods  upon  Credit,  and  then 
to  abscond,  and  defraud  the  Vendor  thereof} 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  in  the  county  aforesaid,  traders,  wick- 

edly and   unjustly  devising  and  intending  one  G.  H.   to   defraud 
and  cheat  of  his  goods,  property,  and  merchandises,  on 
at  did  falsely  and  fraudulently  conspire,  combine,  confede- 

rate, and  agree  among  themselves,  to  obtain  and  get  into  their 
hands  and  possession,  of  and  from  the  said  G.  H.,  his  goods, 
property,  and  merchandises,  upon  trust  and  credit,  and  then  to 
abscond  out  of  the  said  Commonwealth,  and  defraud  him  there- 
of; and  that  the  said  A.  B.,  C.  D.,  and  E.  F.,  in  pursuance  of, 
and  according  to  the  conspiracy,  combination,  confederacy,  and 
agreement  aforesaid,  so  as  aforesaid  had,  did  then  and  there 
falsely  and  fraudulently  obtain  and  get  into  their  hands  and  pos- 
session, of  and  from  the  said  G.  H.,  goods,  wares,  and  merchan- 

'  See  the  report  of  this  case,  Commonwealth  vs.  Ward  et  al.,  1  Mass.  R. 
473,  in  which  the  original  indictment  is  stated.  The  superfluous  matter  in  the 
indictment,  viz.  the  averment  of  the  several  overt  acts,  is  not  retained  in  this 
precedent,  being  unnecessary.     See  precedent,  No.  120,  note  (2.)  ante. 


CONSPIRACY.  105 

dises,  of  the  value  of  five  hundred  dollars,  upon  trust  and  credit ; 
and  in  further  pursuance  of  the  conspiracy,  combination,  and 
confederacy  aforesaid,  so  as  aforesaid  had  among  themselves, 
dicy  the  said  A.  B.,  C.  D.,  and  E.  F.,  before  the  time  of  pay- 
ment for  the  said  goods,  property,  and  merchandises  had  ar- 
rived, did  abscond  and  go  out  of  the  said  Commonwealth,  and 
did  then  and  there,  in  manner  aforesaid,  cheat  and  defraud  the 
said  G.  H.  of  his  goods,  property,  and  merchandise  aforesaid  ; 
against  die  peace  and  dignity  of  the  Commonwealth  aforesaid. 

128.  For  a  Conspiracy  to  manvfocivre  spurioiis  Indigo,  with 
Intent  to  sell  the  same  as  genuine  Indigo  of  the  best  Quality} 

The  jurors  &ic.,  upon  their  oaUi  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  B.,  in  the  county  of  S.,  laborers,  devising  and 
fraudulently  intending  to  acquire  and  get  into  their  hands  and 
possession  the  monies,  goods,  and  property  of  the  citizens  of  this 
Commonwealth,  by  fraudulent  and  dishonest  means,  on  at 

did  falsely,  fraudulently,  and  unlawfully  conspire,  com- 
bine, confederate,  and  agree  among  themselves,  to  mix,  com- 
pound, and  manufacture  certain  articles  and  materials  hereafter 
mentioned,  into  the  form  and  color  and  to  the  resemblance  of 
good  and  genuine  indigo  of  the  best  f|unlity,  and  of  foreign  growth 
and  manufacture,  with  the  fraudulent  intent  and  design,  that  the 
base  material,  to  be  mixed,  compounded,  and  manufactured  as 
aforesaid,  should  be  exposed  to  sale,  and  that  the  same  should 
in  fact  be  sold  to  the  citizens  of  this  Commonwealth  and  others 
as  and  for  good  and  genuine  indigo  of  the  best  quality  and  of 
foreign  growth  and  manufacture.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  A.  B., 
C.  D.,  and  E.  F.,  in  pursuance  of,  and  according  to  the  con- 
spiracy, combination,  confederacy,  and  agreement  aforesaid,  so 
as  aforesaid  had  among  themselves,  on  the  day  and  year  last 

'  Sec  a  full  report  of  this  case.  Commonwealth  vs.  Judd  et  al.  2  Mass.  R.  329, 
io  which  the  law  relative  to  the  form  and  substance  of  an  indictment  for  a  con- 
spiracy is  most  clearly  and  satisfactorily  settled.  See  precedent,  No.  120,  note 
(2.),  ante.  The  latter  part  of  the  indictment  in  this  case,  alleging  the  actual 
sale  of  the  spurious  indigo,  is  left  out  of  this  precedent,  which  is  conformable  to 
the  decision  of  the  court.  The  Cmfef  Justice  and  defendants'  counsel  speak  of 
the  different  counts  in  the  indictment.  There  was  but  one  count  in  the  indict- 
ment, and  when  the  second  and  third  counts  are  referred  to,  it  can  apply  only  to 
the  different  allegations  in  the  body  of  the  indictment,  introduced  as  usual,  by 
the  words,  "  And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present." 

14 


106  CONSPIRACY. 

aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did  fraudu- 
lently mix  and  compound,  with  a  certain  quantity  of  genuine  in- 
digo of  foreign  growtli  and  manufacun-e,  certain  other  articles 
and  materials,  to  wit,  starch,  hlue  vitriol,  nutgalls,  alum,  and  a 
decoction  of  logwood,  in  such  quantities  and  proportions,  as 
thereby  to  increase  the  quantity  of  the  aforesaid  genuine  indigo, 
when  mixed  and  compounded  as  aforesaid,  to  three  times  the 
quantity  and  number  of  pounds'  wciglit  thereof,  and  having  so 
mixed  and  compounded  the  same,  did  then  and  there  so  manu- 
facture and  work  up  the  same  and  the  base  materials  and  com- 
position aforesaid,  as  to  give  the  same  the  false  appearance  and 
resemblance  of  good  and  genuine  indigo  of  the  best  quality  and 
of  foreign  growth  and  manufacture,  and  with  the  fraudulent  in- 
tent and  purpose,  that  the  purchaser  or  purchasers  thereof  should 
be  cheated  and  defrauded  ;  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 

129.  For  a  Conspiracy  hij  Persons  confined  in  Prison,   to  effect 
their  own  Escape,  and  that  of  others} 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  said  B.,  laborers,  on  at  were  per- 
sons lawfully  confined  in  the  Commonwealth's  prison,  situated  in 
B.,  in  the  county  aforesaid,  and  tlieu  and  there  lawfully  detained 
in  the  custody  of  the  keeper  of  said  prison,  by  divers  legal  pro- 
cesses then  and  there  in  force  against  them  the  said  A.  B., 
C.  D.,  and  E.  F.,  [state  the  cause  of  the  detention  of  each  of  the 
defendants,']  and  that  said  A.  B.,  C.  D.,  and  E.  F.,  unlawfully 
contriving  and  intending  to  effect  the  escape  of  themselves  and 
divers  other  persons,  to  the  said  jurors  iniknown,  who  were  then 
and  there  prisoners  lawfully  confined  in  the  said  prison,  and  in 
the  custody  of  the  keeper  thereof,  from  out  of  said  prison,  did 
then  and  there  conspire,  combine,  confederate,  and  agree  to- 
gether, unlawfully  to  effect  the  escape  of  themselves  the  said 
A.  B.,  C.  D.,  and  E.  F.,  and  the  said  other  prisoners,  then  so 
lawfully  confined  in  said  prison,  from  and  out  of  the  same  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 
[The  same  form  may  he  used  when  the  design  of  the  conspirators 
is  to  effect  their  oivn  escape  only,  and  not  that  of  others,  by  omit- 
— • — — — — — — 1 

''  2  C'lit'-  C.  L.  1149,  where  it  is  said  that  this  precedent  is  from  4  "Wentw. 
117.  "  It  neither  states  an  overt  act,  nor  that  any  thhig  was  done  in  pursuance 
of  the  conspiracy;  which  has  been  holden  sufficient."  1  Salk.  174,  2  Lord 
Raym.  11G7.  See  precedent,  120,  note  (2),  ante;  Commonwealth  vs.  Judd 
et  al.  2  Mass.  R.  329. 


CONSPIRACY.  107 

t{n<r  the  ollegation,  "of  divers  other  persons  then  and  there  law- 
fuUij  confined  in  said  prison,'^  &fc.  The  causes  of  detainer  may 
also  be  omitted.      Chitt,  1 1 50.] 

130.  For  a  Conspiracy,  by  Prisoners,  to  effect  their  Escape, 
and  breaking  down  part  of  the  loall  of  the  Prison} 

The  jurors  &:c.,  upon  tlieir  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  laborers,  at  the  time  next  hereafter  men- 

tioned, were  prisoners,  lawfully  confined  in  the  Commonwealth's 
prison  situated  at  B.,  in  the  county  aforesaid,  and  then  and  there 
lawfully  detained  in  the  custody  of  the  keeper  of  said  prison  by 
divers  legal  processes  then  in  force  against  them  ;  and  that  they 
the  said  A.  B.,  C.  D.,  and  E.  F.,  unlawfully  contriving  and 
intending  to  break  down,  demolish,  prostrate,  and  destroy  part  of 
the  wall  belonging  to  and  inclosing  the  said  prison,  and  thereby 
unlawfully  to  effect  the  escape  of  themselves,  the  said  A.  B., 
C.  D.,  and  E.  F.,  and  divers  other  prisoners  dien  lawfully  con- 
fined in  said  prison,  and  in  the  custody  of  the  keeper  thereof,  from 
and  out  of  the  same,  on  at  in  the  county  aforesaid, 

did  utilawlully  conspire,  combine,  confederate,  and  agree  among 
themselves,  and  meet  together  for  the  purposes  aforesaid  ;  and 
being  so  assembled  and  met  together,  did  then  and  there,  in  pur- 
suance of  the  conspiracy,  combination,  confederacy,  and  agree- 
ment aforesaid,  so  as  aforesaid  had  among  themselves,  unlawful- 
ly, and  wickedly  begin  to  break  down,  demolish,  prostrate,  and 
destroy  part  of  the  said  wall,  with  intent  thereby  unlawfully  to 
effect  the  escape  of  themselves  and  the  said  other  prisoners  so 
tliere  confined  in  the  said  prison,  and  in  the  custody  of  the  keep- 
er thereof ;  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

131.  For  a  Conspiracy  by  Prisoners,  and  attempting  to  blowup 
the  Wall  of  a  Prison  with  Gunpowder? 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  in   the   county  of  laborers,  at  the 

time  next  hereafter  mentioned,  were  prisoners  lawfully  confined 
in  the  Commonwealth's  prison,  situated  in  B.  aforesaid,  in  the 
county  aforesaid,  and  then  and  there  lawfully  detained  in  the 


>  3  Chitt.  C.  L.  1150.  This  precedent  is  said  to  be  abridged  from  Cro.  0.  C 
422. 

*  3  Chitt.  C.  L.  1151.  The  same  form  may  be  adopted,  omitting  to  statQ, 
that  the  defendants  were  prisoners. 


108  CONSPIRACY. 

custody  of  the  keeper  of  said  prisoners,  by  virtue  of  divers  legal 
processes  then  in  legal  force  against  them  ;  and  that  the  said 
A.  B.,  C.  D.,  and  E.  F.,  contriving  and  intending  to  break 
down,  blow  uj),  demolish,  prostrate,  and  destroy  a  certain  part 
of  the  wall  of  said  prison  belonging  to  and  enclosing  the  same, 
and  thereby  to  effect  the  escape  of  themselves  and  of  divers 
other  prisoners,  then  lawfully  confined  in  said  prison,  and  in  the 
lawful  custody  of  the  keeper  thereof,  from  and  out  of  the  said 
prison,  on  the  day  of  now  last  past,  at  in  the 

county  aforesaid,  did  unlawfully  and  wickedly  conspire,  combine, 
confederate,  and  agree  among  themselves  for  the  purpose  afore- 
said ;  and  that  in  pursuance  of,  and  according  to  the  conspiracy, 
combination,  confederacy,  and  agreement  aforesaid,  so  as  afore- 
said had  among  themselves,  they  the  said  A.  B.,  C.  D.,  and 
E.  F.  did  then  and  there  make  and  cause  and  procure  to  be 
made  a  certain  large  hole  and  breach  in  the  said  wall  of  the  said 
prison,  of  the  length  of  six  feet,  and  of  the  width  of  six  feet ;  and 
then  and  there  unlawfully  and  wickedly  put,  placed,  and  laid  a 
large  quantity  of  gunpowxler,  to  wit,  ten  pounds  of  gunpowder, 
into  the  said  hole  and  breach,  so  as  aforesaid  made  in  the  wall 
aforesaid,  with  intent  to  set  fire  to  the  said  gunpowder,  and 
thereby  to  break  down,  blow  up,  demolish,  prostrate,  and  destroy 
part  of  the  said  wall,  and  by  the  means  last  mentioned  to  effect 
the  escape  of  themselves  and  the  said  other  prisoners  so  con- 
fined in  die  said  prison,  and  in  the  lawful  custody  of  the  keeper 
thereof,  from  and  out  of  the  same;  against  the  peace  and  dig- 
nity of  the  Commonwealth  aforesaid. 

132.  For  a  Conspiracy  to  persuade  a  Man  not  to  give  Evi- 
dence against  One  committed  for  Trial} 

The  jurors  &;c.,  upon  their  oath  present,  that  at  the  time  of  the 
conspiracy,  combination,  confederacy,  and  agreement  hereafter 
mentioned,  one  A.  B.  was  a  prisoner  in  the  Commonwealth's  gaol, 
situated  in  B.,  in  the  county  aforesaid,  lawfully  committed  and 
charged  with  a  certain  felony,  before  that  time  by  him  commit- 
ted, and  a  certain  indictment  was  about  to  be  preferred  against 
him  the  said  A.  B.  for  the  said  felony,  and  diat  one  C.  D.  was  a 
material  witness  in  support  of  such  bill  of  indictment ;  and  that 
E.  F.  and  G.  H.,  both  of  in  the  county  aforesaid,  laborers, 

well  knowing  the  premises,  and  contriving  and  intending  to  pre- 

^  3  Chitt.  1155,  1156.  See  other  counts  in  the  indictment  in  Chitty.  The 
4th,  without  alleging  any  overt  act,  was  held  good.  See  the  two  next  prece- 
dents, No.  132,  and  133,  and  the  authorities  there  quoted. 


CONSPIRACY.  109 

vent  the  due  course  of  law  and  justice,  and  to  prevent  the  said 
C.  D.  from  attending  as  a  witness  in  support  of  said  bill  of  in- 
dictment about  to  be  preferred  as  aforesaid,  on  at 
and  while  the  said  A.  B.  was  a  prisoner  in  the  said  prison  as 
last  aforesaid  for  the  said  felony,  wilfully  and  corruptly  did  con- 
spire, combine,  confederate,  and  agree  among  themselves  to  in- 
duce the  said  C.  D.  to  suppress  the  evidence  he  knew  concern- 
ing said  felony,  and  to  prevent  the  said  C.  D.  from  attending  to 
give  evidence  as  a  witness  in  support  of  said  bill  of  indictment 
against  the  said  A.  B.,  so  about  to  be  preferred  against  him  as 
aforesaid  ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

133.  Another  Form  for  the  same  Conspiracy,  without  averring 
any  Overt  Act} 

The  jurors  Stc,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  in  the  county  of  laborers,   being 

evil  disposed  persons  and  well  knowiug  that  a  certain  bill  of  in- 
dictment for  felony  was  intended,  and  about  to  be  preferred 
against  one  G.  H.,  and  that  one  I.  J.  was  a  material  witness  in 
support   of   such   bill  of  indictment,  on  at  in  the 

county  aforesaid,  did  unlawfully  and  wickedly  conspire,  com- 
bine, confederate,  and  agree  together,  to  induce  the  said  I.  J.  to 
suppress  the  evidence  he  knew,  and  which  was  within  his  know- 
ledge touching  the  said  felony,  and  to  withdraw  and  conceal  himself, 
in  order  to  prevent  his  being  examined  as  a  witness  in  support  of 
said  bill  of  indictment,  so  as  aforesaid  intended  to  be  preferred  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

134..  For  a  Conspiracy  to  cheat  Another,  without  alleging  any 
Overt  Act.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.  and  C.  D., 
both  ol  B.,  in  the  county  aforesaid,  yeomen,  being  evil  disposed 
persons,  and  devising  and  intending  one  E.  F.  to  injure  and  de- 
fraud, on  the  day  of  at  in  the  county  aforesaid, 
did  unlawfully  conspire,  combine,  confederate,  and  agree  together, 
the  said  E.  F.  to  injure,  cheat,  and  defraud  of  his  monies,  goods, 

*  See  3  Chitt.  1156,  who  says  this  count  is  good,  and  cites  1  Salk.  174; 
2  Ld  Raym.  1167.     See  also  ante,  precedent  No.  120,  note  (2). 

*  This  form,  concise  as  it  is,  will  be  sufficient  and  valid  upon  the  authorities 
referred  to  in  precedent  No.  120,  note  (2).  See  also  3  Chitt,  1186,  a  count  for 
a  general  conspiracy,  stating  no  overt  act  whatever. 


110  ELECTIONS. 

and  chattels  ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

CoiiRECTioN,  House  of.  —  See  "  Nuisance." 

Counterfeiting.  —  See  "  Forgery." 

Deceit.  —  See  "  Cheats." 

Duelling.  —  See  "  Challenges  to  Fight." 


ELECTIONS. 


135.  Indictment  for  fraudulently  voting  at  an  Election  of  Gov- 
ernor, SfC.^ 

The  jurors  &:c.,  upon  their  oath  present,  that  on  the  first 
Monday  of  April  now  last  past,  (it  heing  the  sixth  day  of  said 
month)  the  male  inhabitants  of  the  town  of  in  the  county 

of  were  convened  according  to  the  constitution  and  laws 

of  this  Commonwealth,  in  legal  town  meeting,  for  the  choice  and 
elaction  of  governor,  lieutenant  governor,  counsellors,  and  sena- 
tors for  this  Commonwealth,  for  the  year  then  next  ensuing,  and 
now  current ;  at  which  meeting  of  said  inhabitants,  A.  B.,  of 
B.,  in  the  county  aforesaid,  yeoman,  appeared  to  give  in  his 
vote  and  list  of  persons  to  be  voted  for,  at  the  choice  and  elec- 
tion aforesaid  ;  he  the  said  A.  B.  being  then  and  there  one  of 
the  male  inhabitants  of  said  town  of  and  legally  qualified 

to  give  in  his  vole  and  list  at  the  choice  and  election  aforesaid  ; 
and  that  he  the  said  A.  B.,  being  a  person  regardless  of  the 
rights  of  the  people,  and  of  the  freedom  and  purity  of  elections  in 
this  Commonwealth,  and  of  the  several  laws  thereof  made  to 
regulate  and  preserve  the  same,  on  the  said  sixth  day  of  April, 

1  This  precedent  is  founded  upon  the  3d  section  of  the  statute  of  Massachusetts 
of  1800,  c.  74,  §  3,  and  is  in  the  same  form  of  those  that  have  heen  used  and  sanc- 
tioned in  the  Suprume  Judicial  Court  of  Massachusetts.  Indictments  at  common 
law  have  also  been  maintained  in  that  court  against  officers  of  towns,  for  abuse  of 
their  powers  in  conducting  the  public  elections,  upon  the  principle  of  the  com- 
mon law,  that  there  is  an  implied  engagement  in  the  acceptance  of  all  offices, 
that  they  shall  be  faithfully  executed. 


ELECTIONS.  Ill 

in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
did  knowingly  and  designedly,  give  in  more  than  one  vote  and 
list  of  persons  to  be  elected  and  chosen  into  die  said  offices,  at 
one  lime  of  balloting,  at  the  choice  and  election  aforesaid  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  several  statutes  in  such  case  made  and  provided.^ 

13G.  Jlsrainst  the  Selectmen  of  a  Town,  for  fraudulently  ad- 
mitting Persons  not  qiudified  to  vote  at  an  Election.- 

The  jurors  he,  upon  their  oath  present,  that  on  the  first 
Monday  of  April  now  last  past,  (it  being  die  sixth  day  of  said 
month,)  the  male  inhabitants  of  the  town  of  Northfield  in  the 
county  of  Franklin,  were  duly  and  legally  convened  in  public 
town  meeting,  according  to  the  constitution  and  laws  of  this  Com- 
monwealth, for  the  purpose  of  giving  in  their  votes  and  lists  at 
the  choice  and  election  of  governor,  lieutenant  governor,  coun- 
sellors, and  senators  of  this  Commonwealth  for  the  year  then 
ensuing  and  now  current,  at  which  said  town  meeting  A.  B., 
C.  D.,  and  E.  F.,  all  of  whom  were  the  selectmen  of  the  said 
town  of  Northfield  for  the  year  aforesaid,  having  been  legally 
chosen  and  sworn  into  that  office,  appeared  to  preside  at  and  to 
regulate  said  town  meeting,  and  did  then  and  there  undertake  to 
preside  at  and  regulate  said  meeting,  according  to  their  oath  and 
duty  in  that  behalf;  and  that  the  said  A.  B.,  C.  D.,  and  E.  F., 
selectmen  as  aforesaid,  being  persons  regardless  of  the  rights  of 
the  people,  and  of  the  freedom  and  purity  of  elections,  and  of 
the  constitution  and  laws  of  this  Commonwealth  regulating  the 
same,  on  die  said  sixth  day  of  April  aforesaid,  at  Northfield 
aforesaid,  in  the  county  aforesaid,  did  knowingly  and  corruptly 
neglect  and  refuse  to  comply  with  and  perform  their  several  du- 
ties respectively  required  of  them  by  law,  as  pointed  out  in  and 
by  the  cojis'itution  and  laws  of  this  Commonwealth  ;  that  is  to 
say,  the  said  A.  B.,  C.  D.,  and  E.  F.,  when  presiding  at  said 

*  In  the  case  of  this  offence  of  fraudulent  voting,  there  are  several  statutes 
in  force,  creating  the  offence  and  increasing  the  penalty.  This  precedent 
therefore  concludes  "  against  the  form  of  the  several  statutes  "  &.c. 

*  This  was  the  indictment  against  the  selectmen  of  Northfield,  tried  in  the 
Supreme  Court  in  the  county  of  Hampshire.  It  might  be  condensed  consist- 
ently with  its  validity.  As  the  offence  is  not  expressly  created  by  statute,  it  is 
advisable  to  conclude  the  indictment  both  at  common  law  and  upon  the  "  sev- 
eral statutes."  See  statute  1S!)6,  c.  2;),  §  4,  as  to  the  oaih  of  selectmen.  The 
words  in  italics  in  the  body  of  this  precedent,  coataio  the  susbtance  and  words 
of  this  oath. 


112  ELECTIONS. 

town  meeting  and  regulating  the  same  in  their  said  office  and 
capacity  of  selectmen  as  aforesaid,  did  then  and  there  knowingly 
and  corruptly  admit  one  Lewis  Field,  one  Robert  Trip,  and  one 
James  Robinson,  to  give  in  their  several  votes  and  lists,  at  the 
town    meeting   and   choice  aforesaid  ;   and   did   then   and  there 
knowingly  and  corruptly  receive  the  votes  and  lists  of  persons  to 
be  then  and  there  voted  for,  elected,  and  chosen  into  the  offices 
aforesaid,  of  them  the  said  Lewis  Field,  Robert  Trip,  and  James 
Robinson,  when  in  truth  and  in  fact,  they  had   no  right  to  vote 
and  give  in  their  lists  of  persons  to  be   voted  for,  elected,  and 
chosen  into  the  offices  aforesaid,  at  said  meeting  and  choice,  and 
had  not  the  qualifications  required  by  the  constitution  and  laws  of 
this  Commonwealth  to  vote  and  give  in  their  lists  of  persons  to 
be  voted  for,  elected,  and  chosen  into  the  offices  aforesaid,  at  the 
meeting  and  choice   aforesaid  ;  that   is   to  say,  the  said  Lewis 
Field  was  not  an  inhabitant  of  the  said  town  of  Northfield,  on  the 
said   sixth  day  of  April  aforesaid,  and  did  not  dwell  and  had  not 
his   home  therein  ;  and  that  the   said    Robert  Trip  and  James 
Robinson,  on  the   said  sixth  day  of  April   aforesaid,  or  at  any 
other  time,   had   not,   nor  had  either  of  them,  a  freehold  estate 
within  the   said  Commonwealth,   of  the  annual  income   of  ten 
dollars,  or  any  estate  of  the  value  of  two  hundred  dollars  ;  of  all 
which  the  said  A.   B.,  C.  D.,  and  E.  F.  were  then   and  there 
well  knowing.     And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  same  votes  and  lists  of  the  said 
Lewis  Field,  Robert  Trip,  and  James  Robinson,  so  as  aforesaid 
knowingly  and  corrupdy  admitted  and  received  by  them  the  said 
A.   B.,   C.  D.,  and   E.   F.,  they  the  said  A.  B.,  C.  D.,  and 
E.  F.   did  knowingly  and  corruptly  cause  to  be  recorded  and 
returned  upon  the  lists  of  persons  voted  for  as  governor,  lieuten- 
ant governor,  counsellors,  and  senators  for  the  year  aforesaid,  at 
the  meeting  and  choice  aforesaid  ;  which  list,  containing  the  votes 
of  said  Field,  Trip,  and  Robinson,  thsy  the  said  A.  B.,  C.  D., 
and  E.  F.  did   knowingly  and  corruptly  transmit,  and   cause  to 
be  transmitted  to  the  office  of  the  secretary  of  this  Common- 
wealth, according  to  the  direction  of  the  law  and  constitution  of 
this  Commonweahh  ;  they   the   said  A.  B.,  C.  D.,  and  E.  F., 
well  knowing  that  the  said  Field,  Trip,  and   Robinson  w^ere  not 
qualified  according  to  the  constitution  and  laws  of  this  Common- 
weath  to  vote  and  give  in  theii  lists  of  persons  to  be  voted  for, 
elected,  and  chosen  into  the  offices  aforesaid  ;  in  violation  of  the 
oath  and  duty  of  them  the  said  A.  B.,  C.  D.,  and  E.  F.  in  their 
said  offices  of  selectment  of  said  town  of  Northfield  ;  against  the 


EMBRACERY.  113 

peace  and  dignity  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  several  statutes  in  such  case  made  and  provided.^ 


EMBRACERY. 


137.  For  Einhrncery,  hy  pcrsumUiis;  a  Juror  to  give  his  Verdict 
in  Favor  of  the  Defcndani,  and  for  soliciting  the  other  Jurors 
to  do  the  likc.^ 

The  jurors  «i:c.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  count)  aforesaid,  yeouian,  on  at  in  said  county 

of  B.,  knowing  that  a  certain  jury  of  the  said  county  of  B. 
was  then  didy  returned,  iinpannelled,  and  sworn,  to  try  a  certain 
issue  joined  in  the  Supreme  Judicial  Court,  then  held  and  in 
session  according  to  law,  at  B.  aforesaid,  in  and  for  the  said 
county  of  B.,  between  C.  1).,  plainiifF,  and  E.  F.,  defendant,  in 
a  plea  of  the  case  ;  and  then  also  knowing  that  a  trial  was  to  be 
had  upon  the  said  issue,  on  the  day  of  in  the  year 

aforesaid,  before  the  said  Supreme  Judicial  Court  then  and 
there  held  for  the  said  county  of  B.,  the  said  A.  B.,  wickedly 
and  unlawfully  intending  and  devising  to  hinder  a  just  and  law- 
ful trial  of  the  said  issue  by  the  jurors  aforesaid,  returned,  im- 
pannelled,  and  sworn  as  aforesaid,  to  try  the  said  issue,  on 
at  in  the  county  aforesaid,  unlawfully,  wickedly,  and   un- 

justly, on  behalf  of  the  said  E.  F.,  die  defendant  in  the  said 
cause,  did  solicit  and  persuade  one  G.  H.,  one  of  the  jurors  of 
the  said  jury,  returned,  impannelled,  and  sworn  according  to  law 
for  the  trial  of  said  issue,  to  appear  and  attend  in  lavor  of  the 
said  E.  F.,  the  said  defendant  in  the  said  cause,  and  then  and 
there  did  utter  to  the  said  G.  H.,  one  of  die  jurors  as  aforesaid, 

*  This  indictment  was  tried  as  stated  in  the  preceding  note.  No  objection 
was  made  to  it.  It  may  be  a  question,  however,  whether  the  several  defend- 
ants could  be  joined.  The  offences  are  several  and  different ;  the  deficien- 
cies in  the  qualifications  of  the  voters  are  alleged  to  be  different,  would  require 
different  proof,  and  admit  of  distinct  defences,  depending  upon  facts  indepen- 
dent and  different  in  their  nature. 

-  This  precedent  is  taken,  in  substance,  from  a  similar  precedent  in  Trem. 
P.  C.  176,  and  is  the  ov\y  one  to  be  met  with,  either  in  that  collection,  or  in 
Coke's  Entries,  Chitt.  C.  L.,  Stark.  C.  P.,  Cro.  C.  C,  or  Cro.  C.  A.  There  are 
two  other  precedents  in  an  ancient  book,  containing  precedents  of  indictments, 
informations,  &c.,  entitled  "  Officium  Clerici  Pads." 
15 


114  ESCAPE. 

divers  words  and  discourses,  by  way  of  commendation,  on  be- 
half of  him  the  said  E.  F.,  the  said  defendant,  and  in  disparage- 
ment of  the  said  C.  D.,  the  plaintiff;  and  that  he  the  said  A.  B. 
did  then  and  Uiere  unlawfully  and  corrii|)tly  move  and  desire 
the  said  G.  II.  to  solicit  and  persuacle  the  olher  jurors,  letuined, 
impannelled,  and  sworn  to  try  the  said  issue,  to  give  a  verdict  for 
the  said  E.  F.,  the  defendant  in  the  said  cause,  he  ilie  said 
A.  B.  then  and  there  well  knowing,  that  the  said  G.  H.  was  one 
of  the  jurors  returned,  impannelled,  and  sworn  to  try  the  said 
issue  ;  and  that  the  jurors  of  said  jury,  by  reason  of  speaking 
and  uttering  the  words  and  discoiu'ses  aforesaid,  did  give  their 
verdict  for  the  said  E.  F.,  the  said  defendant  in  the  cause  afore- 
said ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid.^ 


ESCAPE. 

138.    Indictment  at   Common  Law  for  escaping  from  a  Con- 
stable, being  in  Custody  under  a  Warrant  for  Larceny.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  B., 
in  the  county  aforesaid,  gentleman,  he  the  said  A.  B.  being  a 
constable  of  the  said  town  of  B.,  duly  and  legally  authorized  to 
execute  and  perform  the  duties  of  that  office,  on  at 

'in  the  county  aforesaid,  did  take  and  arrest  one  C.  D.,  by  virtue 
of  a  warrant  from  E.  F.,  Esquire,  one  of  the  justices  of  the 
peace  in  and  for  the  county  aforesaid,  on  suspicion  of  having 
committed  a  certain  felony,  in  feloniously  stealing,  taking,  and 
carrying  away  one  gelding,  of  the  value  of  dollars,  of  the 

property  of  one  G.  H. ;  and  that  thereupon  he  the  said  C.  D., 
under  the  custody  of  him  the  said  A.  B.,  the  constable  as  afore- 
said, was  then  and  there  brought  before  the  said  E.  F.,  Esquire, 
one  of  the  justices  of  the  peace  in  and  for  the  county  aforesaid, 
duly  authorized  to  discharge  and  perform  the  duties  of  that  of- 
fice. Whereupon  such  proceedings  were  had,  that  the  said 
E.  F.,  Esquire,  by  his  warrant  of  commitment,  directed  to  him 

1  The  last  allegation  in  this  precedent,  viz.  that  the  jury  gave  their  verdict 
for  defendant  by  reason  of  the  solicitations,  &c.  is  not  necessary.  The  crime  is 
complete  by  the  attempt,  whether  it  succeed  or  not.  Hawk.  b.  1,  c,  85,  §  1  &  2, 
and  authorities  there  quoted. 

-  2  Chitt.  C.  L.  159 :  Stark.  602,  608 ;  Cro.  C.  C.  188. 


ESCAPE.  115 

the  said  A.  B.,  did  then  and  there  command  the  said  A.  B.  to 
convey  the  said  C.  D.  to  the  gaol  of  said  Commonweahh,  at 

B.  aforesaid,  in  the  county  aforesaid,  there  to  be  safely  kept 
until  he  should  be  lawfully  delivered  thence  by  due  course  of 
law  ;  by  virtue  of  which  warrant  the  said  C.  D.  was  then  and 
there  taken  and  detained  by  l^r*  the  said  A.  B.  ;  and  that,  as 
he   the  said  A.  B.  was  conveying  and  carrying  him    the    said 

C.  D.  to  the  gaol  aforesaid  afterwards,  to  wit,  on  the  day 
of  now  last  past,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  he  the  said  C.  D.  did  forcibly  break  away 
and  escape  from  and  out  of  the  custody  of  him  the  said  A.  B., 
constable  as  aforesaid,  against  the  will  of  him  the  said  A.  B., 
and  against  the  peace  and  dignity  of  the  Commonwealth  afore- 
said. 

139.  Against  a  Prisoner  in  Custody,  for  breaking  out  of  Gaol. ^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  now  last  past,  at  B.,   in   the  county  aforesaid,  was 

arrested,  detained,  and  imprisoned  in  the  Commonwealth's  gaol, 
situated  in  B.  aforesaid,  in  the  county  aforesaid,  for  a  certain 
felony  by  him  committed,  that  is  to  say,  for  feloniously  stealing, 
taking,  and  carrying  away  one  gelding,  of  the  value  of  one  hun- 
dred dollars,  of  the  goods,  chattels,  and  property  of  one  C.  D., 
and  that  he  the  said  A.  B.,  on  at  with  force  and 

arms,  the  aforesaid  gaol  of  the  said  Commonwealth  did  forcibly 
break,  and  thereby  did  then  and  there  escape  from  and  out  of 
the  said  gaol ;  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

140.  Against  a  Constable  for  a  negligent  Escape.^ 

The  jurors  &:c.,  upon  their  oath  present,  that  on  the 
day  of  now  last  past,  at  B.  aforesaid,  in  the  county  afore- 

1  2  Chitt.  C.  L.  160,  where  it  is  said  this  precedent  is  taken  from  Burn  J., 
Prison-breaking  ;  Williams  J.,  Escape,  iii.  It  is  remarkable  that  there  is  no 
similar  precedent  in  Stark.,  Cro.  C.  C,  Cro.  C.  A.,  or  Trem.  P.  C.  I  think  it 
would  be  more  safe  and  correct,  that  the  warrant  or  precept,  whatever  it  may 
be,  should  be  set  out  at  large  in  the  indictment ;  but  that  is  not  the  case  in  the 
precedent  from  which  this  form  is  taken. 

2  See  similar  precedents  in  2  Chitt.  181 ;  Cro.  C.  C.  318,  (6th  Ed.) ;  2  Stark. 
605.  The  same  form  may  be  used  in  case  of  a  voluntary  escape,  by  substituting 
the  word  "  voluntary,"  for  the  word  "  negligently,"  at  the  close  of  the  indict' 
raent. 


IIG  ESCAPE. 

said,  one  A.  B.  cnme  before  C.  D.,  Esquire,  then  one  of  the 

justices  of  the  peace  in  and  for  the  county  aforesaid,  duly  and 
legally  qualilicd  and  empowered  to  discharge  and  perlorm  the 
duties  of  ilint  office,  and  that  the  said  A.  1).  did  tiicn  and  there, 
on  his  oath  hefore  said  justice,  charge,  accuse,  and  complain, 
that  one  E.  F.,  of  B.  aforesaid^lahorer,  [here  set  forth  the  com- 
plaint.'] Whereupon  such  proceedings  were  had,  that  the  said 
justice  did  then  and  there  make  a  certain  warrant  under  his 
hand  and  seal,  in  due  form  of  law,  directed  to  the  sheriff' of  the 
said  county  of  or  his  deputy,  or  to  any  of  the  constables 

of  the  town  of  in  the  county  aforesaid,  thereby  requiring 

them  and  each  of  them  to  take  the  body  of  the  said  E.  F., 
and  bring  him  before  the  said  C  D.,  the  justice  aforesaid,  to 
be  dealt  with,  touching  said  complaint,  as  to  law  and  justice 
might  appertain  ;  which  said  warrant  afterwards,  on  the  day  and 
year  aforesaid,  at  B.  aforesaid,  was  delivered  to  I.  J.,  of  said  B., 
in  the  county  aforesaid,  yeoman,  (he  being  then  and  there  one 
of  the  constables  of  the  said  town  of  B.,  duly  appointed,  quali- 
fied, and  sworn  to  discharge  and  perform  the  duties  of  said  of- 
fice,) in  due  form  of  law  to  be  by  him  served  and  executed  ;  by- 
virtue  of  which  warrant  the  said  I.  J.  afterwards,  to  wit,  on  the 
day  of  at  B.  aforesaid,  in  the  county  aforesaid,  did 

take  and  arrest  the  body  of  him  the  said  E.  F.,  and  him  in  his 
custody  for  the  cause  aforesaid  then  and  there  had.  Neverthe- 
less the  said  I.  J.  afterwards,  to  wit,  on  the  day  of 
in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
the  duties  of  his  office  in  that  respect  not  regarding,  unlawfully 
and  negligently  did  permit  the  said  E.  F.  to  escape  and  go  at 
large  wheresoever  he  would,  out  of  the  custody  of  him  the  said 
I.  J.,  whereby  the  said  E.  F.  did  then  and  there  escape  and  go  at 
large,  out  of  the  custody  of  the  said  I.  J. ;  against  the  peace  and 
dignity  of  the  Commonwealth  aforesaid. 

141.  Against  a  Gaoler,  for  a  voluntary  Escape  of  a  Priaoner 
convicted  of  Felony.^ 

The  jurors  &z;c.,  upon  their  oath  present,  that  at  the  Supreme 
Judicial  Court  of  said  Commonwealth,  begun  and  holden  at  \heje 
set  forth  the  time  and  place  of  holding  the  Court,]  one  A.  B. 
was  duly  and  legally  convicted  of  the  crime  of  larceny,  in  felo- 
niously stealing,  taking,  and  carrying  away  fifty  pounds'  weight  of 

'  This  precedent  is  drawn  upon  the  third  section  of  the  Statute  of  Massachu- 
setts of  1784,  c.  41,  but  it  would  doubtless  be  good  at  common  law,  and  the 
precedent  so  concludes. 


ESCAPE.  117 

tea,  of  the  value  of  thirty  dollars,  of  the  goods  and  chattels  of 
one  C.  D.,  whereupon  it  was  considered,  ordered,  and  adjudged 
by  the  said  court,  ihat  [here  set  forth  the  sentence  of  the  court,'] 
as  by  the  record  thereof  and  proceedings  remaining  among  the 
records  of  said  court  more  fully  appears.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  after- 
wards, to  wit,  at  the  Supreme  Judicial  Court  abovementioned, 
the  said  A.  B.,  by  order  of  said  court,  was  committed  to  the 
keeping  and  custody  of  E.  F.,  of  in  the  county  of 

gentleman,  then  and  still  the  gaoler  and  prison-keeper  of  the 
Commonwealth's  gaol,  situated  at  B.,  in  the  county  aforesaid, 
there  to  be  kept  and  imprisoned  in  the  said  gaol  and  prison,  ac- 
cording to,  and  in  pursuance  of  the  order  and  sentence  aforesaid  ; 
and  the  said  E.  F.  him  the  said  A.  B.  in  his  custody  then  and 
there  had  for  the  cause  aforesaid,  he  the  said  A.  B.  having  stood 
charged  and  been  convicted  as  iiforesaid  of  the  aforesaid  felony 
and  larceny,  and  thereupon  committed  as  a  prisoner  as  aforesaid 
to  him  the  said  E.  F.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  E.  F.,  of  B.,  in 
the  county  aforesaid,  gentleman,  afterwards  and  before  the  ex- 
piration of  the  term  for  which  the  said  A.  B.  so  as  aforesaid  was 
ordered  to  be  imprisoned,  to  wit,  on  the  day  of  at 

B.  aforesaid,  in  the  county  aforesaid,  unlawfully,  voluntarily,  and 
contemptuously,  did  permit  and  suffer  the  said  A.  B.  to  escape 
and  go  at  large  out  of  the  said  gaol  and  prison ;  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided.^ 

142.  For  conveying  Instruments  into  a  Prison,  with  Intent  to 
facilitate  the  Escape  of  a  Prisoner.^ 

The  jurors  &.C.,  upon  their  oath  present,  that  heretofore,  to 
wit,  on  the  day  of  now  last   past,  at  B.  aforesaid, 

in  the  county  aforesaid,  A.  B.,  Esquire,  then  being  one  of  the 
justices  of  the   peace  in  and  for  the  said   county  of  duly 

and  legally  authorized  and  qualified  to  discharge  and  perform 
the  duties  of  that  office,  did  make  out  his  warrant  of  commit- 

'  The  same  form  may  be  used  in  the  case  of  a  negligent  escape,  by  substi- 
tuting the  word  "  negligently,"  for  the  word  "  voluntarily,"  at  the  close  of  the 
indictment. 

^  This  precedent  is  drawn  upon  the  second  section  of  the  statute  of  Massa- 
chusetts of  1784,  c.  41.  it  also  concludes  at  common  law.  See  a  similar  pre- 
cedent in  Stark.  612,  drawn  upon  the  statute  of  16  Geo.  2,  c.  31,  §  1 ;  also 
another  in  Cro.  C.  A.  328. 

ft 


118  ESCAPE. 


iiient,  in  due  form  of  law,  bearing  date  the  day  and  year  afore- 
said, directed  to  the  keeper  of  the  Commonwealth's  gaol  in 
aforesaid,  his  under-keeper,  or  deputy ;  by  which  said  warrant 
of  commitment,  the  said  justice  did  require  the  keeper  of  said 
gaol,  his  under-keeper,  or  deputy,  to  receive  into  their  custody 
the  body  of  one  C.  D.,  who  was  therewith  sent  to  them  the 
said  keeper,  his  under-keeper,  or  deputy,  (the  said  C.  D.  having 
been  brought  before  him  the  said  justice,  and  charged,  upon  the 
oath  of  E.  F.,  with  having  feloniously  taken,  stolen,  and  carried 
away  a  certain  gelding,  of  the  value  of  dollars,  the  proper- 

ty of  him  the  said  E.  F.,)  and  him  the  said  C.  D.  safely  to  keep 
until  he  should  be  discharged  by  due  course  of  law  ;  which 
said  warrant  of  commitment  is  as  follows,  [here  set  forth  the  war- 
rant of  commitment.']  By  virtue  of  which  said  warrant,  the  said 
C.  D.  afterwards,  to  wit,  on  the  same  day  and  year  aforesaid, 
at  B.  aforesaid,  was  conveyed,  committed,  and  delivered  to  the 
Commonwealth's  said  gaol,  situated  in  said  B.,  and  to  the  keep- 
er thereof,  for  the  cause  aforesaid,  to  wit,  for  the  felony  and 
larceny  aforesaid  ;  and  the  said  C.  D.  was  then  and  there  law- 
fully detained  and  kept  a  prisoner  in  the  aforesaid  gaol,  under 
the  custody  of  I.  J.,  Esquire,  then  the  keeper  of  said  gaol,  for 
the  felony  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  K.  L.,  of  in  the  county 

aforesaid,  laborer,  on  the  day  of  at  B.  aforesaid,  in 

the  county  aforesaid,  did  unlawfully  convey,  and  did  cause  and 
procure  to  be  unlawfully  conveyed  into  the  said  gaol  and  prison, 
two  steel  files,  being  instruirients  proper  to  facilitate  the  escape 
of  prisoners  out  of  the  gaol  and  prison  aforesaid,  and  the  same 
files  did  then  and  there  deliver,  and  cause  and  procure  to  be 
delivered  to  the  said  C.  D.,  (he  being  then  and  there  a  prisoner 
in  said  gaol  and  prison,  and  then  and  there  lawfully  detained 
therein  (or  the  felony  and  larceny  aforesaid,)  without  the  know- 
ledge and  privity  of  said  keeper  of  said  gaol  and  prison,  or  of 
any  under-keeper  of  the  same,  which  said  files,  being  such  in- 
struments as  aforesaid,  were  then  and  there  so  conveyed  into  the 
said  gaol  and  prison,  and  delivered  to  the  said  C.  D.  as  afore- 
said, by  him  the  said  K.  L.,  with  an  intent  that  he  the  said 
C.  D.  might  thereby  and  therewith  break  the  said  gaol  and 
prison,  and  unlawfully  work  himself  out  of  the  same,  and  with 
intent  to  aid  and  assist  the  said  C.  D.  to  escape  and  attempt  to 
escape  from  and  out  of  the  said  gaol  and  prison  ;  against  the 
peace  and  dignity  of  the  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided.^ 

'  This  form  will  answer  when  the  prisoner  actually  escapes,  by  inserting  the 


EXTORTION.  119 

143.  Against  a  Prisoner-  confined  in   Gaol,  for  attempting  to 
break  the  Gaol  in  order  to  make  his  Escape.^ 

The  jnrors  he,  upon  their  oath  present,  that  A.  B.,  of 
in   the  county  of  laborer,  on  the  day  of  now 

last  past,  at  B.,  in  the  comity  aforesaid,  was  arrested,  detained, 
and  imprisoned  in  the  Commonwealth's  gaol,  situated  in  B. 
afc^resaid,  for  [here  set  forth  the  warrant  or  precept  vpon  which 
the  prisoner  was  committed,^  and  that  he  the  iraid  A.  B.,  being  a 
prisoner  lawfully  detained  in  the  gaol  aforesaid,  and  in  the  cus- 
tody of  the  keeper  thereof,  for  the  cause  aforesaid,  on  at 
B.  aforesaid,  in  the  county  aforesaid,  with  force  and  arms,  unlaw- 
fully and  wilfully  did  attempt  to  brJkk  the  aforesaid  gaol,  and 
to  escape  and  go  at  large  from  and  out  of  the  same  gaol,  by  then 
and  there  cutting  and  sawing  asunder  two  iron  bars  of  the  said 
gaol,  and  also  by  then  and  there  breaking,  cutting,  and  removing 
a  great  quantity  of  stone,  parcel  of  the  wall  of  said  gaol ;  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid.^ 


EXTORTION. 


144.  Indictment  against  a  Justice  of  the  Peace  for  Extortion  : 
On  the  sixth  Section  of  the  Statute  of  Massachusetts. '^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &,c.. 
Esquire,  on  the  day  of  &c  ,  then  being  one  of  the  justices 

words  in  the  latter  clause  of  the  section,  viz,  "  that  if  any  prisoner  shall  make 
his  escape  by  means  of  any  instrument,"  &c. 

'  Stark.  608,  (a  similar  precedent,  but  a  defective  one  ;  see  note  (a.)  to  the 
precedent;)  2  Chitt.  164,  165;  Cro.  C.  A.  219.  These  precedents  are  all 
alike  ;  but  they  may  be  safely  abridged. 

'^  There  is  a  precedent  in  Stark.  602,  and  another  in  Chitt.  162,  against  a  per- 
son for  aiding  a  prisoner  to  escape  by  assisting  him  to  break  th?  prison.  It 
would  be  more  correct  to  proceed  against  them  both  as  principals,  as  in  misde- 
meanors all  are  principals.  The  same  remark  is  applicable  to  the  precedents 
in  Stark.  606;  2  Chitt.  176  ;  Cro.  C  A.  216,  against  a  turnkey  of  a  prison,  for 
aiding  and  assisting  a  prisoner  to  escape  by  breaking  the  gaol. 

3  Stat.  1795,  c.  41,  §  6.  By  this  section  the  prosecution  is  limited  to  one 
year  from  the  time  when  the  offence  is  committed.  This  form  may  be  adopted, 
mutatis  mutandis,  for  extortions  by  all  other  officers  and  persons  mentioned  in 
the  aforesaid  statute. 


120  EXTORTION. 

of  the  peace  in  and  for  the  county  of  duly  and  legally  ap- 

pointed and  qualified  to  perform  the  duties  of  that  ofiice,  not 
regarding;  tlie  duties  of  said  office,  but  contriving  and  intending 
one  C.  D.  to  injure  and  oppress,  on  the  said  day  of 

in  the  year  aforesaid,  at  in  the  county  aforesaid,  by  color 

of  his  said  office,  did  wilfully,  corruptly,  and  extorsively  de- 
mand, take,  and  receive  of  him  the  said  C.  D.  a  greater  fee  than 
is  allowed  and  provided  by  law  for  the  trial  of  a  certain  issue, 
then  and  there  in  due  form  of  law  joined  and  pending  before 
him  the  said  A.  B.,  as  a  justice  of  the  peace  for  the  said  county 
of  between  the  aforesaid  C.  D.  and  one  E.  F.,  in  a  cer- 

tain civil  action  coMiincnc%d  and  entered  by  the  said  C.  D. 
against  the  said  E.  F.  before  him  the  said  A.  B.,  justice  of  the 
peace  as  afores;iicl,  at  a  Justice's  Court  duly  appointed,  and  then 
and  there  held  by  him  the  said  A.  B.,  to  wit,  the  sum  of 
for  the  trial  of  the  said  issue,  which  sum  is  more  than  the 
fee  allowed  and  provided  by  law  for  the  service  aforesaid  ;  con- 
trary to  the  duty  of  him  the  said  A.  B.  in  his  office  aforesaid  ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

145.  Against  a  Constable,  for  tafci7ig  Money  under  Rretence  of 
getting  the  Party  discharged  without  any  Proceedings  to  be 
had  before  a  Justice  of  the  Peace} 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of  &ic., 
on  the  day  of  &,c.,  at  &.C.,  being  then  and  still  one  of  the  con- 

stables of  the  town  of  in  the  county  aforesaid,  did  arrest  and 

take  into  his  custody  one  C.  D.,  by  virtue  of  a  warrant  duly 
issued  by  one  E.  F.,  Esquire,  then  and  still  being  one  of  the 
justices  of  the  peace  in  and  for  the  county  aforesaid,  duly  and 
legally  appointed,  authorized,  and  empowered  to  discharge  and 
perform  the  duties  of  said  office,  directed  to  [here  insert  the  war- 
rant ;]  and  the  said  C  D.,  so  being  in  custody  as  aforesaid,  for 
the  purpose  aforesaid,  to  answer  the  complaint  aforesaid,  he  the 
said  A.  B.  did  then  and  there  fraudulently,  unlawfully,  and  inju- 
riously demand,  have,  receive,  and  obtain  of  and  from  him  the 
said  C.  D.  the  sum  of  upon  pretence  and   color,   that  he 

the  said  A.  B.  would  procure  and  obtain  a  discharge  of  said  war- 
rant, without  any  proceedings  being  had  thereon ;  whereas  in 
truth   and   in  fact  the  said   A.  B.  did  not  procure  and  obtain  a 

»  This  precedent  is  altered  from  one  in  2  Chitt.  C.  L.  293,  where  other  pre- 
cedents are  quoted  from  4  Wentw.  146,  147  ;  Burns  J.  Extortion  ;  Williams  J. 
Extortion;  Cro.  C.  C.  327-330,  (6th  Ed.) 


EXTORTION.  121 

discharge  of  said  warrant ;  against  the  peace  and  dignity  of  the 
Conimonvvealih  aforesaid. 

146.  Afrainst  a  Constable  for  extorting  Money  of  n  Person  ap- 
prehended by  him  upon  a  Warrant,  to  let  him  go  at  large.^ 
The  jurors   &;c.,  upon  their  oath  present,  that  A.  B.,  of  &.c., 

on  at  in  the  county  aforesaid,  then  and  there  being 

one  of  the  constables  of  the  town  of  in  the  county  afore- 

said, did  take  and  arrest  one  C.  D.  by  virtue  of  a  warrant  duly 
made  and  issued,  which  he  tho  said  A.  13.  then  and  there  had, 
directed.  Sec.  \here  insert  the  icrtrnnit  ;'\  and  that  the  said  A.  B. 
him  the  said  C.  D.  then  and  there  had  in  his  custody  by  virtue 
of  the  said  warrant,  and  Uiat  the  said  A.  B.  afterwards,  to  wit, 
on  at  in  the  county  aforesaid,  unlawfully,  corruptly, 

and  extorsively,  for  the  sake  of  gain,  and  contrary  to  the  duty  of 
his  said  oOicn,  did  extort,  receive-,  and  take  of  and  from  the  said 
C.  D.  the  sum  of  for  discliarging  the  said  C.  D.  out  of  the 

custody  of  him  the  said  A.  B  ,  constable  as  aforesaid,  with- 
out conveying  the  said  C.  D.  before  any  justice  of  the  peace 
in  and  for  said  county,  or  before  any  other  lawful  authority,  to 
answer  to  the  charges,  matters,  and  things,  whereof  i)e  stood 
accused  and  charged  as  aforesaid  ;  against  the  peace  and  digni- 
ty of  the  Commonwealth  aforesaid. 

147.  Against  a  Justice  of  the  Peace  for  extorting  Fees  for  dis- 
charging a  Recoi^nisance,  and  for  not  returning  the  same  to 
the  Court  for  u'hich  it  was  taken.- 

The  jurors  &;c.,  upon  their  oath  present,  N.  J.,  of  &z;c.,  on 
Sic,  and  continually  afterwards,  until  the  day  of  the  taking  of 
this  inquisition,  was,  and  yet  is,  one  of  the  justices  of  the  peace 
within  and  for  the  said  county  of  &.C.,  duly  and  legally  appointed 
and  authorized  to  discharge  the  duties  of  that  oflice.  Neverthe- 
less the  said  N.  J.,  not  regarding  the  duties  of  his  said  office, 
but  perverting  the  trust  reposed  in  him,  and  contriving  and  in- 
tending the  citizens  of  this  Commonwealth,  for  the   private  gain 

'  2  Cliiu.  295,  296  ;  Cro.  C.  C.  327,  (6th  Ed.)  ;  2  Stark.  585.  See  other 
precedents  for  extortion  in  2  Chitt.  296,  297 ;  Cro.  C.  C.  327 ;  1  Tretn.  P.  C. 
111-115  ;  2  Chitt.  300,  against  a  collector  for  extorting  money  by  color  of  bis 
office. 

*  This  precedent  is  substantially  taken  from  a  precedent  in  1  Trem.  P.  119, 
120.  No  authority  or  other  precedent  is  referred  to.  I  think  this  precedent 
would  be  more  correct  if  the  indictment  alleged  the  particular  nature  and  con- 
dition of  the  recognisance,  and  also  that  the  magistrate  was  authorized  to 
take  it. 

16 


122  rORCIBLE  ENTKY  AND  DETAINER. 

of  him  the  said  N.  J.,  to  oppress  and  impoverish,  and  the  due 
execution  of  justice,  as  much  as  in  liim  hiy,  to  hinder,  ohstruct, 
and  destroy,  on  the  dny  of  and   between   that  day 

and  the  day  of  the  finding  of  this  bill,  at  aforesaid,  in  the 

county  aforesaid,  under  color  of  his  said  office  of  justice  of  the 
peace  for  the  said  county  of  a  certain  sum  of  money,   to 

wit,   the   sum  of  for  not  returning  a   certain   recognisance 

before  him,  within  the  time  aforesaid,  taken  for  the  appearance 
of  one  G.  J.  at  a  certain  term  of  the  [Acre  describe  the  court  to 
which  the  recognisance  was  made  returnable,^  to  be  holden  next 
after  the  taking  of  the  recognisance  aforesaid  from  the  said  G.  J., 
unlawfully,  unjustly,  and  extorsively  did  exact,  receive,  and  liave ; 
and  ahliough  the  said  next  court  of  \_hcrc  describe  the  court,']  for 
the  county  aforesaid,  after  the  taking  of  the  recognisance  afore- 
said, and  to  which  the  said  recognisance  ought  to  have  been  re- 
turned, was  held  at  in  the  county  aforesaid,  on  the 
Tuesday  of  in  the  year  aforesaid,  in  the  due  course  of 
law,  the  said  N.  J.  the  said  recognisance,  to  the  court  aforesaid, 
as  of  right,  and  according  to  his  duty  and  the  laws  of  said  Com- 
monwealth he  ought  to  have  done,  did  not  return,  but  suppressed 
the  same,  against  the  duties  of  his  said  oflice,  to  the  great  hin- 
drance of  justice,  and  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 


FORCIBLE  ENTRY  AND  DETAINER. 

148.  Indictment  for  a  Forcible  Entry  and  Detainer,  at  Common 

Law} 

The  jurors  Sic,  upon  their  oalli  present,  that  A.  B.,  of  &c., 
and  C.  D.,  of  Sec,  together  with  divers  other  evil  disposed  per- 
sons, whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
on  at  with  force  and  arms,  and  ivith  a  strong  hand^ 

unlawfully,  forcibly,  and  injuriously,  did  enter  into  [here  describe 
the  premises  according  to  the  fact,  and  as  accurately  as  is  required 
in  a  declaration  in  ejectment,]  then  and  there  being  in  the  peace- 
able possession  of  one  E.  F.,  and  situate  and  being  in  the  said 
town  of  in  the  county  aforesaid ;  and  that  the  said  A.  B. 


1  SChitt.  1124.     See  similar  precedents,  in  Stark.  422;    Cro.  C.  C.  331; 
8  T.  R.  3.57 ;  1  Russ.  P.  407,  note  1,  (Davis's  Ed.) 
*  This  allegation  is  essential.     8  T.  R.  357. 


FORESTALLING,  ENGROSSING,  AND  UECriATING.  123 

and  C.  D.,  tou;etlier  with  llie  said  evil  disposed  persons,  then 
and  there  will)  force  as  aforesaid,  and  with  a  strong  iiand,  lui- 
lavvfully,  violently,  forcibly,  and  injurionsly  did  expel,  amove, 
and  put  out  the  said  E.  F.  from  the  pessession  of  the  said  prem- 
ises with  the  appurtenances,  and  the  said  E.  F.,  so  as  aforesaid 
expelled,. amoved,  and  put  out  from  the  possession  of  the  sa(ne, 
with  force  and  arms  and  widi  a  stron;;;  hand,  unlawfully,  violent- 
ly, forcibly,  and  injuriously  have  kept  out,  from  the  day  and  year 
aforesaid,  innil  the  taking  of  this  inciuisilion,  and  still  do  keep 
out,  and  other  wrongs  to  the  said  E.  F.  then  and  there  did,  to 
the  great  damage  of  him  the  said  E.  F.,  and  against  the  peace 
and  dignity  of  the  Commonwealih  aforesaid.^ 

The  proceedings,  in  cases  of  Forcible  Entry  and  Detainer  are 
regulated  by  statute  in  the  several  States.  The  proceeding  by 
indictment  at  common  law  is  unknown  in  Massachusetts. 


FORESTALLING,  ENGROSSING,  AND  REGRATING. 

149.  For  forestalling  Lambs  in  their  Way  to  a  public  Market.^ 

The  jurors  kc,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  yeoman,  on  at  did  buy  and 

cause  to  be  bought  of  one  C.  D.  tliirty  lambs,  then  and  tliere 
coming  and  being  driven  towards  a  certain  market  in  the  city  of 
Boston  and  county  of  Suffolk,  for  the  sale  of  all  kinds  of  provi- 
sions, called  Fanned  Hall  Market,  for  the  purpose  of  being  ex- 
posed to  sale  and  sold  in  the  said  market,  and  before  the  same 
were  brought  into  the  said  market  where  the  same  should  have 
been  sold  ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

'  There  are  two  other  precedents  in  Chitty  similar  to  the  foregoing,  excepting 
that  they  conclude  upon  the  ancient  English  statutes.  The  last  precedent 
(p.  1126)  is  nothing  more  than  the  form  of  an  indictment  for  a  riot  at  common 
law. 

'  2  Chitt.  533.  If  the  name  of  tlie  person  of  whom  the  article  was  purchased 
be  unknown,  it  may  be  alleged  in  the  indictment,  that  it  was  "  bought  and 
caused  to  be  bought  of  a  person  whose  name  is  to  the  said  jurors  unknown." 


124  FORGEUV  AND  COUNTEUFEITING. 

1 50.  For  Engrossing} 

The  jurors  &c.,  upon  ilicir  oaili  present,  iliat  A.  B.,   of  &,c., 
on   "  at  aloresaiil,  did  unhiwfully  engross  and  get  into 

his  hands,  by  buying  of  and  from  divers  persons,  to  the  jurors 
aforesaid  unknown,  a  large  quantity,  to  wit,  one  thousand  bush- 
els" of  wlieut,  with  intent  to  sell  the  same  again  for  lucre,  gain, 
and  at  an  unreasonable  profit ;  against  the  peace  and  dignity  of 
ihe  Commonwealth  albresaid. 

151.  For  Rcgrating? 

The  jurors   Sec.,   upon  their  oath  present,  that  A.  B.,  of  &tc., 
on  at  in  a  certain  market  there,   called  the 

market,  unlawfully  did  buy,  obtain,  and  get  into  his  hands  and 
possession,  of  and  from  one  C.  1).,   a   large  quantity  of  to 

wit,  one  hundred  |)ounds'  weight  of  al  and  for  the  price  of 

for  each  and  every  poinul  of  the  said  and  that  af- 

terwards, to  wit,  o\\  the  said  day  of  he  the  said  A.  B., 

al  aforesaid,  in  the  county  albresaid,   in   the  same  market 

there,  unlawfully  did  regrate  the  said  one  hundred  pounds'  weight 
of  and  did  then   and   there   sell   the   same   again  to  one 

E.  F.,  at  and  for  the  price  of  for  each   and   every  pound 

weight  of  the  said  with  a  deduction  of  on  the  whole 

price  of  the  said  one  hundred  pounds'  weight  of  being  al- 

lowed and  thrown  back  by  the  said  A.  B.  to  the  said  E.  F.  ; 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 


FORGERY  AND  COUNTERFEITING. 

152.  For  forging  a  Promissory  JVotefor  the  Payment  of  Money  : 
On  the  first  Section  of  the  Statute  of  Massachusetts  o/"1804, 
c.  UO} 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  k,c., 
on  the  day  of  at  in  the  county  aforesaid,  did 

»  2  Chitt.  534. 

»  The  quantity  must  be  stated.     1  East,  538  ;  2  Stark.  654. 

'  2  Chitt.  535,  536,  note  (g),  where  a  case  is  stated  in  which  a  motion  in 
arrest  of  judgment  was  submitted,  upon  the  ground  that  the  act  of  regrating  is 
not  an  offence  at  common  law  ;  no  decision  was  had,  the  Court  being  equally- 
divided.     See  other  precedents,    Cro.  C.  C.  ;  2  Stark.  654. 

*  This  and  the  fifteen  following  precedents  are  original,  and  are  drawn  upt  ' 


FORGERY  AND  COUNTERFEITING.  125^. 

falsely  make,  forge,  and  counterfeit,  and  did  cause  and  procure 
to  be  falsely  made,  forged,  and  counterfeited,  a  certain  promisso- 
ry note  lor  the  payment  of  money,  purporting  to  be  made  mid 
signed  by  one  C    D.,  for  t!>e   su.n   of  "dollars,  whici,  said 

lalse,  forged,  and  counterfeit  promissory  note  is  of  the  purport 
and  effect  ollovvmg,^  to  wit,  [here  insert  a  true  copy  of  the  note 
m  the  words  and  figures  of  it,]  with  intent  the  said  C.  D.  to  in- 
jure  and  delraud  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  lorm  of  the  statute  in  such  case  made  and  pro- 
vided.* I 

153.  For  forging  a  Certificate  of  a  Justice  of  the  Peace  :    On 
the  first  Section  of  the  Statute. 
The  jurors  &:c.,  upon  their  oath  present,   that  A.  13.,   of  &;c 
?"  ,^^  .'"    '''^'   <^""U"ty  aforesaid,    did    falsely  make! 

lorgc,  and  counterleit,  and  did  cause  and  procure  to  be  falsely 
made  iorged,  and  counterfeited,  a  certain  certificate  and  attesta- 
tion ol  one  C.  D.,  Esqune,  one  of  the  justices  of  the  peace  in 
and  lor  the  county  of  which  said  false,  forged,  and   coun- 

terleit  certihcate  and  attestation  is  of  the  purport  and  effect  fol- 
lowing, to  w.t,  [here  insert  an  exact  copy  of  the  certificate  in 
words  aud  figures,]  which  said  false,  forged,  and  counte/feit  cer- 
tificate and  attestation,  then  and  there  purported  to  be  the  cer- 
tfficate  and  attestation  of  a  justice  of  the  peace,  in  a  matter 
wherein  the  said  certificate  and  attestation  was  receivable,  and 
might  be  taken  as  legal  proof;  widi  intent  one  E.  F.  to  injure 
and  defraud  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided.  ' 

1 54.  For  uttering  and  publishing  a  forged  Instrument :    On  the 

last  Clause  of  the  first  Section  of  the  Statute. 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B    of  &c 

on  the  day  of  now  last  past,  at  in  the  county 

the  several  sections  of  the  statute  of  Massachusetts  against  forgery  and  counter 
feUing.  of  1804.  c.  120.  They  are  in  the  same  forms  which  have  been  adopted 
ever  since  the  statute  was  enacted. 

•  This  is  the  most  proper  allegation,  as  to  the  mode  of  describing  the  for-ed 
instrument  It  .s  neither  necessary  nor  advisable  to  allege  it  in  the  "  tenor  fol- 
lowing."    See  2  East,  P.  C.  957,  §  53,  54. 

Mf  the  note  forged  purports  to  be  given  for  specific  articles,  then  allege  it  to 
be  a  certain  promissory  note  for  the  dehvery  of  goods,"  as  in  the  words  of  the 
statute. 


126  FORfiEHY  AND  COUNTEUFEITINR. 

aforesaid,  had  in  his  custody  and  possession  a  certain  false, 
forged,  and  couiitcrfcit  promissory  note  for  the  payment  of 
money,  purporiinfi;  to  he  made  and  signed  hy  one  C.  D.,  for  the 
sum  of  dollars;  which   said   false,  forged,  and  counterfeit 

promissory  note  is  of  the  following  purport  and  effect,  to  wit, 
[/lere  irmtrt  a  correct  copy  of  the.  forircd  instrument,  in  ivords 
and  figures  ;'\  and  that  he  the  said  A.  B.  the  aforesaid  false, 
forged,  and  counterfeit  promissory  note  did  then  and  there  utter 
and  puhlish  as  true,  with  intent  one  E.  F.  to  injure  and  defraud, 
he  the  said  A.  B.  then  and  there  well  knowing  the  aforesaid 
note  to  he  false,  forged,  and  counterfeit;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  tlie  statute  in 
such  case  made  and  provided.^ 


Precedents  upon  the  Second  Section  of  the  Statute. 

155.  For  forging  a  Certificate  of  a  public  Debt. 

The  jurors  &ic.,  upon   their  oath  present,  that  A.  B.,  of  &ic., 
on  at  did  falsely  make,  forge,  and  counterfeit,  and 

did  cause  and  procin-e  to  ho  falsely  made,  forged,  and  counter- 
feited, and  did  willingly  aid  and  assist  in  falsely  making,  forging, 
and  counterfeiting  a  certain  note,  [or  certificate  or  other  bill  of 
credit,  as  the  case  may  6e,]  purporting  to  he  a  note  which  had 
been  duly  issued  hy  the  treasurer  of  the  said  Commonwealth, 
thereto  duly  authorized  for  a  debt  of  this  Commonwealth  ;  which 
said  false,  forged,  and  counterfeit  note  is  of  the  purport  and  ef- 
fect following,  to  wit,  [Acre  insert  an  exact  copy  of  the  note  or 
instrument  in  loords  and  figures  ;'\  with  intent  the  said  Common- 
wealth to  injure  and  defraud  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 

'  The  same  form  may  be  adopted  for  the  forgery  of  all  the  different  instru- 
ments mentioned  in  this  section  of  the  statute,  making  use  of  the  precise  words 
used  in  the  statute  to  describe  the  instrument. 

2  If  (he  note  or  certificate  was  issued  by  a  commissioner  or  commissioners,  it 
is  to  be  so  alleged,  instead  of  alleging  them  to  be  issued  by  the  treasurer.  See 
the  words  of  the  section. 

This  form  may  be  used  and  adapted  to  all  the  cases  of  uttering  and  publishing 
forged  instruments  which  may  be  prosecuted  upon  this  section  of  the  statute. 


FORGERY  AND  COUNTERFEITING.  127 

15G.  For  forging  a  Bank  Bill  of  a  Bank  incorported  vrithin     ' 

this  State. 

The  jurors  kc,  upon  their  oath  present,  that  A.  B.,  of  &tc 
fn"r<.P     anf  'r-^''^  T"^^'  aforesaid,   did    falsely    make' 

foSi  i  ^°"";^'-/^.'S^"d   did  procure   to    he   falsely  made 

S;  tn  ,.  h  ''"^''f ''  \'''''''''  °'^"'^  bill,  purporting  to  be 
ni^dL  "■''  '\''''^'  ''''^  '"  ^^^  "^'^'^    "^   behalf 'of  the 

p.c  Kitnt,  dn-ectors,  and  company  of  the  (Boston)  bank,  the  same 

wi  hh/^h  7°''"°''   '^>'  '-^^^  J'^^'"^ed  and  authorized  as  a  bank 

TnernHt  ^'"/^^^ '  '<?,  P"^P"'t  and  effect  lollouing,  [here  insert 
an  exact  copy  of  the  bill  ui  ivorcls  andfirurcs  ;  ]  with  inte.u  the 

to',  d'm-e '".'', '/''"'r"'  "^.'  ^°'"''='">-  °'^'-^  --'  Boston  bank 
TnC  '  'T'^';-  "^""'^  ^'"-^  P^^accof  said  Commonwealth, 
provided      '^'       ^  ""  °'  ''^'  '^"'"'^  '"  ^"^'^  ^^^^^  '"^^^  ^"d 

157.  For  being  possessed  often  counterfeit  Bank  Bills  at  the 
same  time,  with  intent  to  pass  the  same} 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  Stc 
at  had  m  his  custody  and  possession  ten  false,  forged,  and  /<t.^.. 

counterfeit   bank  bdls,  purporting  to    be   ten  bank  bills  payable   ^ 
to  the  bearers  thereof,  and  to  be  signed  in  behalf  of  the  presi- 
dent, dnectors,  and  company  of  the   (Boston)   bank,  the  same 
being  a  corporation  by  law,  licensed  and  authorized  as  a  bank 
within    this  Commonwealth,   which  said    bank  bills   are  of  the 
LT    r'';      ^^f^^fo"°"ing,    to    wit,   one  of  said  bank    bills 
being  o[  the   following  purpart  and   effect,   to   wit,i   [here  you 
musltnserta  true  copy  of  all  and  each  of  the  ten  bills  ;    after 
mserting  a  true  copy  oj  the  first,  go  on  to  say,  one  other  of 'said 
bdlsbeuigofthnfolloioing  purport  and  effect,  and  so  on  with  the 
whole  ojtheni;^  and  that  he  the  said  A.  B.  did  then  and   there 
willingly  aid  and  assist  in  rendering  current  as  true,  each  of  the 
iaise,  forged,  and  counterfeit  bank  bills  aforesaid,  knowing  them 
and  each  ol  them  to  be  false,  forged,  and  counterfeit  as  aforesaid, 
^^.th  intent  to  utter  and  pass  the  same,  and  thereby  to  injure  and 
delraud  the  president,  directors,  and  company  of  the  said  (Bos- 

inlfrf '"T  •'"  f '■'''"  "•  ^'''""""■'^•^"''^  8  Mass.  R.  59,  where  several 
important  points  in  the  construclion  of  this  section  of  the  statute  are  decided. 
i^eeCo^^monwealthv.Hovshton,  8  Mass.  R.  107;  each  bill  must  be  de- 
scnbed,  tha  IS,  copied,  in  the  indictment,  or  a  sufficient  reason  assigned  in  the 
indictment  lor  not  doing  it. 


128  FORGERY  AND  COUNTERFEITING. 

ton)  bank  ;  against  the  peace  of  said  Commonwealth,  and  con« 
•traiy  to  the  form  of  the  statute  in  such  case  made  and   provided. 


Indictments  framed  upon  the  Third  Section  of  the 
Statute. 

158.  For  littering  and  tendering  in  Payment  a  Counterfeit  Bank 
Bill  of  an  incorporated  Bank  in  Massachusetts. 

The  jurors  &ic  ,  upon  their  oath  present,  that  A.  B.,  of 
in   the   county  aforesaid,  laborer,  on  at  had   in   his 

custody  and  possession  a  certain  false,  forged,  and  counterfeit 
bank  bill,  purporting  to  be  a  bank  bill  payable  to  the  bearer 
thereof,  and  to  be  signed  in  behalf  of  the  president,  directors, 
and  company  of  the  (Boston)  bank,  the  same  being  a  corpora- 
tion by  law  licensed  and  authorized  as  a  bank  within  this  Com- 
monwealth ;  which  said  false,  forged,  and  counterfeit  bank  bill 
is  of  the  following  purport  and  effect,  to  wit,  [here  insert  an 
exact  copy  of  the  counterfeit  bill  in  words  and  figures ;  ]  and 
that  he  the  said  A.  B.  the  aforesaid  false,  forged,  and  counter- 
feit bank  bill  did  then  and  there  utter  and  tender  in  payment'  as 
true,  with  intent  one  C.  D.  to  injure  and  defraud  ;  he  the  said 
A.  B.  then  and  there  well  knowing  the  aforesaid  bank  bill  to  be 
false,  forged,  and  counterfeit;  against  the  peace  of  said  Com- 
inonwealth,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

159.  For  a  Second  Offence  in  passing  a  Counterfeit  Bank  Bill. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  aforesaid,  laborer,  heretofore,  to  wit,  on 
at  had  in  his  custody  and  possession  a  certain  false,  forged, 

and  counterfeit  bank  bill,  purporting  to  be  a  bank  bill  payable  to 
the  bearer  thereof,  and  to  be  signed  in  behalf  of  the  president, 
directors,  and  company  of  the  (Boston)  bank,  the  same  being  a 
corporauon  by  law  licensed  and  authorized  as  a  bank  within  this 
Commonvrealth  ;  which  said  false,  forged,  and  counterfeit  bank 
bill  is  of  the  following  purport  and  effect,  to  wit,  [^here  set  forth 

'  The  words  in  the  first  section  of  the  statute  are  "  utter  and  publish,"  those 
used  in  the  third  section  are  "  utter  and  tender  in  payment."  There  is  no 
difference  in  the  technical  meaning  of  these  words,  yet  the  precise  language  of 
the  statute  must  be  used  in  both  cases. 


FORGERY  AND  COUNTERFEITING.  129 

the  forged  bill  as  it  is  described  in  the  indictment  upon  which  the 
party  loas  convicted,']  and  that  he  the  said  A.  B.  did  then  and 
there  utter  and  tender  in  payment,  as  true,  the  aforesaid  false, 
forged,  and  counterfeit  hank  hill,  with  intent  one  C.  D.^  to  injure 
and  defraud,  he  the  said  A.  B.  then  and  there  well  knowing  the 
aforesaid  bank  bill  to  be  false,  forged,  and  counterfeit ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  th^  form 
of  the  statute  in  such  case  made  and  provided ;  of  which  said 
offence  the  said  A.  B.,  at  the  Supreme  Judicial  Court  begun 
and  holden   at  B.,  within  and   for  the  county  of  on  the 

Tfciesdav  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  was  duly  and  legally  convicted.     And 

the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  A.  B.,  afterwards,  to  wit,  on  at  in  the 

county  aforesaid,  had  in  his  custody  and  possession  a  certain  other 
false,  forged,  and  counterfeit  bank  bill,  purporting  to  be  a  bank 
bill  payable  to  the  bearer  thereof,  and  to  be  signed  in  behalf  of 
the  president,  directors,  and  company  of  the  (Boston)  bank,  the 
same  being  a  corporation  by  law  licensed  and  authorized  as  a 
bank  within  this  Commonu'ealth,  which  said  last  mentioned  false, 
forged,  and  counterfeit  bank  bill  is  of  the  following  purport  and 
effect,  to  wit,  [here  insert  an  exact  copy  of  the  forged  bill  in 
words  and  figures  ;  ]  and  that  he  the  said  A.  B.  the  aforesaid 
and  last  mentioned  false,  forged,  and  counterfeit  bank  bill,  did 
then  and  there  utter  and  tender  in  payment  as  true,  with  intent 
one  E.  F.  to  injure  and  defraud,  he  the  said  A.  B.  then  and 
there  well  knowing  the  aforesaid  and  last  mentioned  bank  bill 
to  be  false,  forged,  and  counterfeit ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

160.  For  bringing  into,  and  being  possessed  of  a  Counterfeit 
Bill  within  this  Commonwealth,  with  intent  ^-c. :  Draxvn  njfon 
the  Fourth  Section  of  the  Statute. 
The  jurors  Stc,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  at  had  in  his   custody  and  possession  a  certain 

false,  forged,  and  counterfeit  bill  and  note,  in  the  similitude  of 
the  bills  and  notes  payable  to  the  bearer  thereof,  issued  by  and 
for  the  (Boston)  bank,  the  same  being  a  bank,  and  banking  com- 
pany legally   established    within  this  State  5^  which   said    false, 

•  The  person  alleged  to  be  defrauded  in  the  former  convictioa. 

*  If  the  forged  bill  be  of  a  bank  of  another  State,  then  say,  "  the  same  being 
a  bank  or  banking  company  legally  established  within  the   state   of 
naming  the  State. 

17 


130  FORGERY  AND  COUNTERFEITING. 

forged,  and  counterfeit  bill  and  note  is  of  the  following  purport 
and  effect,  to  wit,  [here  insert  the  copy  of  the  counterfeit  bill  or 
note  in  words  and  figures ;  ]  and  that  he  the  said  A.  B.  the 
aforesaid  false,  forged,  and  counterfeit  bill  and  note  in  his  hands 
and  possession  then  and  there  had  and  kept,  for  the  purpose  of 
rendering  the  same  current  as  true,  and  with  intent  to  pass  the 
same,  he  the  said  A.  B.  then  and  there  well  knowing  the  afore- 
said bill  and  note  to  be  false,  forged,  and  counterfeit;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 


Forms  of  Indictments  upon  the  Fifth  Section  of  the 
Statute. 

161.  For  making  or  mending  any  Tool  ^c,  to  be  used  in  coun- 

terfeiting Bank  Bills  ^c. 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  &c. 
on  at  did  engrave,  form,  and  make,  and  did  begin 

to  engrave,  form,  and  make,  a  certain  tool,  instrument,  and  ma- 
terial, called  a  plate,  the  same  being  a  tool,  instrument,  and  ma- 
terial devised,  adapted,  and  designed  for  the  stamping,  forging, 
and  making  of  false  and  counterfeit  bills  and  notes,  in  the  simili- 
tude of  the  bills  and  notes^  payable  to  the  bearers  thereof,  which 
have  been,  or  which  shall  be  issued  as  aforesaid,  by  and  for  the 
(Boston)  bank  ;  the  same  being  a  bank  and  banking  company 
which  is  by  law  established  in  this  State  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided.- 

162.  For  being  possessed  of  any  Tool  S^c,  to  be  used  in  counter- 

feiting Bills  <^c. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &:c. 
on  at  had  in  his  custody  and  possession  a  certain 

plate,  engraven,  devised,  adapted,  and  designed  for  the  stamping, 


'  This  phrase  is  not  in  the  fifth  section  of  the  statute  ;  but  it  is  transcribed 
from  the  4th  section,  and  will  be  found  to  be  necessary  in  the  description  of  the 
offence  in  this  section. 

^  The  same  form  will  be  applicable  to  the  other  instiuments  mentloDcd  in  this 
section,  such  as  paper,  rolling  presses,  &c. 


FORGERY  AND  COUNTERFEITING.  131 

forging,  and  making  of  false  and  counterfeit  bills  and  notes,  pay- 
able to  the  bearer  thereof,  which  have  been  issued  by  and  for 
the  (Boston)  bank,  the  same  being  a  bank  and  banking  company 
which  is  by  law  established  in  this  State,  with  the  intent  to  use 
and  employ  the  same,  and  to  cause  and  permit  the  same  to  be 
used  and  employed  in  forging  and  making  such  false  and  coun- 
terfeit bills  of  the  said  (Boston)  bank ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


Forms  he.  upon  the  Sixth  Section  of  the  Statute. 

163.  For  counierfeiting  any  Gold  or  Silver  Coin. 

The  jurors  Sic,  upon   their  oath  present,  that  A.  B.,  of  &ic., 
on  at  did  forge  and  counterfeit,  and  did  procure  to 

be  forged  and  counterfeited,  and  did  willingly  aid  and  assist  in 
forging  and  counterfeiting  a  certain  piece  of  silver  coin,  current 
within  this  Commonwealth  by  the  laws  and  usages  thereof,  called 
a  dollar ;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 

164.  Another  Form  for  the  Same,  more  fully  set  forth. 

The  jurors  &,c.,  upon  their  oath  present,  that  A.  B.,  of  Sic, 
on  at  contriving  and   intending  the  citizens  of  this 

Commonwealth  to  deceive  and  defraud,  twenty  pieces  of  false 
and  counterfeit  coin,  of  copper,  brass,  and  other  mixed  metals, 
of  the  likeness  and  similitude  of  the  good  and  legal  silver  coin, 
current  within  this  Commonwealth  by  the  laws  and  usages 
thereof,  called  dollars,  then  and  there  falsely,  deceitfully,  and 
fraudulently  did  forge  and  counterfeit,  and  procure  to  be  forged 
and  counterfeited,  and  did  willingly  aid  and  assist  in  forging  and 
counterfeiting ;  against  the  peace  of  said  Commonwealth,  and 
contrary  lo  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

165.  For  being  possessed  often  Pieces  of  Counterfeit  Coin,  with 
intent  to  pass  the  same. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  Sic, 
on-  at  had  in  his  custody  and  possession  ten  similar  /j.'B'f^ 

pieces  of  false  and  counterfeit  coin,  of  the  likeness  and  similitude 


132  FORGERY  AND  COUNTERFEITING. 

of  tlic  good  and  legal  silver  coin,  current  within  this  Connmon- 
wcaltli  hy  the  laws  and  usages  ihereol",  called  dollars  ;  and  that 
he  the  said  A.  B.  the  aforesaid  ten  similar  pieces  of  false  and 
counterfeit  coin  did  willingly  aid  and  assist  in  passing  and  ren- 
dering current,  as  true  ;  and  for  that  purpose,  he  the  said  A.  JJ. 
the  aforesaid  ten  pieces  of  false  and  counterleit  coin,  forged  and 
counterfeited  to  the  similitude  of  the  silver  money  and  coin  cur- 
rent as  aforesaid,  then  and  there,  and  at  one  and  the  same  time, 
did  have  and  possess,  with  intent  to  utter  and  pass  the  same, 
he  the  said  A.  B.  then  and  there  well  knowing  the  same  to  be 
false,  forged,  and  counterfeit;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


Forms  &;lc.  upon  the  e  venth  Section  of  the  Statute. 

IGG.  For  beiiig  possessed  of  any  number  of  Pieces  of  false  Coin, 
with  intent  ^-c. 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  Stc, 
on  at  had  in  his  custody  and  possession  five  similar 

pieces  of  false  money  and  coin,  forged  and  counterfeited  to  the 
likeness  and  similitude  of  the  silver  money  and  coin  current 
within  this  Commonwealth  by  the  laws  and  usages  thereof, 
called  dollars ;  and  that  he  the  said  A.  B.  the  aforesaid  five 
similar  pieces  of  false  and  counterfeit  coin,  in  his  hands,  custody, 
and  possession,  then  and  there  had  and  kept,  with  intent  to 
utter  and  pass  die  same  as  true  ;  he  the  said  A.  B.  then  and 
there  well  knowing  the  same  to  be  false,  forged,  and  counter- 
leit ;  against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

J  67.  For  uttering  and  passing  Counterfeit  Coin,  knowing  8fc. 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  at  had  in  his  custody  and  possession  a   certain 

piece  of  false  money  and  coin,  forged  and  counterfeited  to  the 
likeness  and  similitude  of  the  good  and  legal  silver  coin,  current 
within  this  Commonwealth  by  the  laws  and  usages  thereof,  called 
a  dollar ;  and  that  he  the  said  A.  B.  the  aforesaid  piece  of 
forged  and  counterfeit  coin  did  then  and  there  utter,  pass,  and 
tender  in  payment,  as  true,  with  intent  one  C.  D.  then  and  there 
to  injure  and  defraud ;  he  the  said  A.  B.  then  and  there  well 


FORGERY  AND  COUNTERFEITING.  133 

knowing  the  aforesaid  piece  of  coin  to  be  false,  forged,  and 
counterfeit ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

1G8.  For  makinsr  or  being  possessed  of  any  Tool  SfC,  to  he  used 
in  counterftiliit^  Coin :  On  the  Eighth  Section  of  the  Statute. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  at  intending  the  citizens  oi   this  Commonwealth 

to  injure,  deceive,  and  defraud,  did  cast,  stamp,  engrave,  form, 
and  make,  and  did  then  and  there  knowingly  have  and  possess 
a  certain  tool  and  instrument,  devised,  adapted,  and  designed 
for  the  coining  and  making  of  false  and  counterfeit  money  and 
coin,  in  the  similitude  of  the  silver  money  and  coin  current  within 
this  Commonwealth  by  the  laws  and  usages  thereof,  called  a 
die  ;  with  the  intent  to  use  and  employ  the  same,  and  to  cause 
and  permit  the  same  to  be  used  and  employed  in  coining  and 
making  the  false  money  and  coin  aforesaid  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided.' 

109.  For  forging  a  Bond  signed  with  a  Mark,  with  intent  to 
defraud  the  Executors  of  a  deceased  Person.' 

The  jurors  &£c.,  upon  their  oath  present,  that  A.  B.,  of  &ic., 
on  ai  in  the  county  aforesaid,  did  falsely  make,  forge, 

and  counterfeit,  and  did  cause  and  piocnre  to  be  falsely  made, 
forged,  and  counterfeited  a  certain  bond  purporting  to  be  signed  by 
one  C.  D.  (then  deceased)  in  his  life  time,  with  the  mark  ■^  of  him 
the  said  C.  D..  and  to  be  by  him  sealed  and  delivered  in  his 
life  time,  which  said  bond  is  of  the  following  purport  and  effect, 
to  wit,  [Acre  recite  the  bond  with  the  mark  of  the  said  C.  D. ;  ] 
with  intent  to  defraud  one  E-  F.  and  one  G.  H.,  executors  of 
the  last  will  and  testament  of  the  said  C.  D. ;  against  the  peace 

'  Another  count  may  be  added  for  possessing  only,  in  which  the  same  form 
may  be  adopted,  omitting  the  words  "  did  cast,  stamp,  engrave,  form,  ami 
make,"  and  use  the  words  "  did  then  and  there  knowingly  have  and  possess  a 
certain  tool,"  &c. 

'  Taken  from  Cro.  C.  C.  360,  (6th  Ed.) ;  another  count  may  be  added  for 
uttering  and  publishing.  See  a  similar  precedent,  Stark.  522,  (2d  Ed.)  There 
is  no  such  precedent  in  the  1st  edition. 

^  Forgery  may  be  committed  by  making  the  mark  of  another  person.  Cro. 
C.  C.  360,  note  (a),  (tJth  Ed.) 


134  FORGERY  AND  COUNTERFEITING. 

of  said  Commonwealth,  and  contrary  to  the  form  of  the   statute 
in  such  case  made  and  provided. 


Precedents  of  Indictments  for  Forgery  and  Counter- 
feiting,  DRAWN    upon    the    STATUTES    OF     THE    UnITED 

States. 

170.  For  forging  a  Bill  or  Note  of  the  United  States  Banh} 

The  jurors  Stc,  upon  their  oath  present,  that  A.  B.,  of  &;c., 
on  at  within  the  said  district  of  did  felonious- 

ly and  falsely  make,  forge,  and  counterfeit,  and  did  cause  and 
procure  to  be  feloniously  and  falsely  made,  forged,  and  counter- 
feited, and  did  willingly  aid  and  assist  in  feloniously  and  falsely 
making,  forging,  and  counterfeiting  a  certain  bill  and  ~  note,  in 
imitation  of,  and  purporting  to  be  a  bill  and  note  issued  by  order 
of  the  president,  directors,  and  company  of  the  bank  of  the 
United  States ;  which  said  false,  forged,  and  counterfeit  bill  and 
note  is  of  the  following  purport  and  effect,^  to  wit,  \here  insert  a 
correct  copy  of  the  bill  or  note  in  words  and  figures  ;  ]  with  in- 
tention die  said  president,  directors,  and  company  of  the  said 
bank  of  the  United  States  to  injure  and  defraud  ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of  the 
statute  of  said  United  States  in  such  case  made  and  provided.'* 

1  Act  of  April  10th,  1816,  §  18;  Gord.  Dig.  art.  3633,  p.  711. 

«  The  words  of  the  statute  are  "  bill  or  note."  See  the  case  of  Common- 
wealth V.  Brown,  7  Mass.  R.  59.  In  that  case  the  words  of  the  statute  of 
Massachusetts  upon  which  the  indictment  was  drawn  are  the  same  as  in  the 
statute  of  the  United  States  above  quoted,  that  is,  "  bills  or  notes."  One  of 
the  errors  assigned  in  that  case  was,  that  it  did  not  appear  by  the  indictment 
(which  was  in  the  words  of  the  statute)  whether  the  forged  instruments  were 
"  bills  "  or  "  notes."  This  objection  was  overruled.  Per  Curiam,  a  bank  bill 
is  also  a  note. 

3  This  mode  of  alleging  the  purport  of  the  instrument  is  equally  valid  and 
more  advisable  than  to  allege  it  in  the  "  tenor,"  in  which  case  the  slightest 
mistake  is  fatal. 

4  The  words  of  the  statute  of  the  United  States  upon  which  this  precedent  is 
drawn  are,  "  every  such  person  shall  be  deemed  and  adjudged  guilty  of  felony." 
The  English  precedents  upon  the  statute  of  15  Geo.  2,  c.  13,  or  45  Geo.  3,c.  89, 
for  the  forgery  of  a  note  of  the  bank  of  England,  allege  the  forgery  to  have  been 
feloniously  committed.  The  offence  by  these  statutes  is  capital.  See  the 
cases  of  Commonwealth  v.  Macomber,  3  Mass.  R.  254,  and  Commonwealth  v. 
JVewall  et  ul.,  7  Mass.  R.  245. 


FORGERY  AND  COUNTERFEITING.  135 


171.  For  uttering  and  publishing  a  forged  Bill  of  the  United 
States  Bank,  on  the  same  Section  of  the  Statute.^ 

The  jurors  &ic.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
on  at  had  in  his  custody  and  possession   a  certain 

false,  forged,  and  counterfeit  bill  and  note,  purporting  to  be  a 
bill  and  note,  issued  by  order  of  the  president,  directors,  and 
company  of  the  bank  of  the  United  States,  which  said  false, 
forged,  and  counterfeit  bill  and  note  is  of  the  following  purport 
and  effect,  to  wit,  [here  insert  a  correct  copy  of  the  bill  or  note  ;  ] 
and  that  he  die  said  A.  B.,  the  aforesaid  false,  forged,  and  coun- 
terfeit bill  and  note  did  then  and  there  pass,  utter,  and  publish 
as  true,  and  attempt  to  pass,  utter,  and  publish  as  true,  knowing 
the  same  to  be  false,  forged,  and  counterfeit,  with  intention  the 
aforesaid  president,  directors,  and  company  of  the  said  bank  of 
the  United  States  to  injure  and  defraud  ;  against  the  peace  of  the 
said  United  States,  and  contrary  to  the  form  of  the  statute  of 
the  said  United  States  in  such  case  made  and  provided.^ 

172.  For  selling  and  delivering  a  forged  Bill  of  the  United 
States  Bank :   On  the  same  Section  of  the  Statute. 

The  jurors  &ic.,   upon  dicir  oath  present,  that  A.  B.,  of  &c., 
on  at  had  in  his  custody  and  possession   a  certain 

false,  forged,  and  counterfeit  bill  and  note,  in  imitation  of,  and 
purporting  to  be  a  bill  and  note  issued  by  order  of  the  president, 
directors,  and  company  of  the  said  bank  of  the  United  States, 
which  said  false,  forged,  and  counterfeit  bill  and  note  is  of  the 
purport  and  effect  following,  to  wit,  [here  insert  a  correct  copy  of 
the  bill  or  note  ;  ]  and  that  he  the  said  A.  B.  the  aforesaid  false, 
forged,  and  counterfeit  bill  and  note  did  then  and  there  sell, 
utter,  and  deliver,  and  caused  to  be  sold,  uttered,  and  delivered, 
with  intention  the  said  president,  directors,  and  company  of  the 
said  bank  of  the  United  States  to  injure  and  defraud,  he  the  said 


'  An  indictment  for  falsely  making,  forging,  &c.,  can  be  supported  by  proof 
of  a  note  originally  genuine,  but  afterwards  fraudulently  altered.  "  If  any  part  of 
a  true  instrument  be  altered,  the  indictment  may  lay  it  as  a  forgery  of  the 
whole."    2  East  P.  C.  978. 

*  The  allegation  as  to  the  party  defrauded  must  be  according  to  the  fact. 
The  provisions  of  the  statute  in  this  respect  are,  "  with  intehtion  to  defraud 
the  said  corporation,  [the  United  States  bank,]  or  any  other  corporation  or 
person."  The  party  defrauded  must,  in  all  cases,  be  truly  stated ;  it  is  a  ma- 
terial allegation  in  the  indictment. 


136  FORGERY  AND  COUNTERFEITINn. 

A.  B.  then  and  there  well  knowino;  the  said  bill  and  note  to  be 
false,  forged,  and  counterfeit ;  against  the  peace  of  said  United 
States,  and  contrary  to  the  form  of  the  statute  of  said  United 
States  in  such  case  made  and  provided. 

1 73.  For  uttering  and  passing  a  fidsehj  altered  Bill,  6,-c. :   On 
the  same  Section  of  the  Statute. 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of  &,c., 
on  at  had   in  his  custody  and   possession  a  certain 

falsely  altered  bill  and  note,  which  bill  and  note,  before  the  same 
had  been  falsely  altered,  was  issued  by  order  of  the  president, 
directors,  and  company  of  the  bank  of  the  United  Slates,' 
which  said  falsely  altered  bill  and  note  is  of  the  purport  and 
eflect  following,  to  wit,  [Acre  insert  a  correct  copy  of  the  said  al- 
tered bill  or  note,]  and  that  he  the  said  A.  B.  the  aforesaid 
falsely  altered  bill  and  note  did  then  and  there  pass,  utter,  and 
publish  as  true,  and  did  then  and  there  attempt  to  pass,  utter, 
and  publish  as  true,  with  intention  the  said  president,  directors, 
and  company  of  the  said  bank  of  the  United  States  to  injure 
and  defraud,  he  the  said  A.  B.  then  and  there  well  knowing  the 
aforesaid  bill  and  note  to  have  been  falsely  altered  as  aforesaid  ; 
against  the  peace  of  said  United  States,  and  contrary  to  the  form 
of  the  statute  of  the  United  Slates  in  such  case  made  and  pro- 
vided." 


'  According  to  the  literal  construction  of  the  words  of  the  statute,  the  allega- 
tion would  he,  that  the  bank  of  the  United  States  had  issued  "  a  falsely  alter- 
ed bill  or  note  ;  "  the  allegation  therefore,  that  it  had  been  issued  by  the  Bank 
before  it  teas  altered,  may  be  material. 

-  The  foregoing  forms  of  indictments  may  he  adopted  in  all  the  cases  pro- 
vided against  in  this  section  of  the  statute,  which  relate  to  the  forging  or  pass- 
ing of  orders  and  checks  on  the  bank  or  any  cashier  thereof. 

J\rote.  With  respect  to  the  forgery  of  public  documents,  made  punishable  by 
the  several  statutes  of  the  United  States,  the  same  forms  of  precedents,  mutatis 
mutandis,  are  to  be  adopted,  as  in  cases  of  other  forgeries,  using  the  precise 
words  of  the  statutes  in  the  description  of  the  instruments  forged. 


FORGERRY  AND  COUNTERFEITING.  137 


Forms  of  Indictments  for  Counterfeiting  the  Current 
Coin  of  the  United  States. 

174.  For  counterfeiting  any  Gold  or  Silver  Coin,  resembling 
the  Gold  and  Silver  Coin  which  has  been  coined  at  the  Mint 
of  the  United  States} 

The  jurors  &:c.,   upon  their  oath  j)resent,  that  A.  B.,  of  &,c., 
on  at  (lid  falsely  make,  forge,  and  counterfeit,  and 

did  cause  and  procure  to  be  falsely  made,  forged,  and  counter- 
feited, and  did  willinH;ly  aid  and  assist  in  falsely  making,  forcing, 
and  counterfeiting,  a  certain  piece  of  gold  coin,  in  the  resem- 
blance and  similitude  of  the  gold  coin  which  has  been  coined  at 
the  minl%f  the  United  States,  called  an  eagle,  [if  a  piece  of 
foreign  coin,  say,  in  the  resemblance  and  similitude  of  a  piece  of 
foreign  gold  coin,  ichich  by  law  has  been  made  current  in  the  said 
United  States,'\  with  intent  to  defraud  [here  allege  the  body 
politic  or  person  intended  to  be  defrauded ;]  against  the  peace 
of  the  said  United  States,  and  contrary  to  the  form  of  the  statute 
of  the  said  United  Stales  in  such  case  made  and  provided. 

175.  For  utterinz^  and  publishing  counterfeit  Coin,  ichich  has 

been  coined  at  the  .Mint  of  the  United  States.- 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
on  at  had   in  his  custody  and  possession  a  certain 

false,  forged,  and  counterfeit  piece  of  gold  coin,  in  the  resem- 
blance and  similitude  of  the  gold  coin  which  has  been  coined  at 
the  mint  of  the  United  States,  called  an  eagle,  [if  a  piece  of 
foreign  coin,  say,  in  the  resemblance  and  similitude  of  a  piece  of 
foreign  gold  coin,  ivhich  by  law  has  been  made  current  in  the 
United  States,']  and  that  he  the  said  A.  B.  the  aforesaid  piece 
of  false,  forged,  and  counterfeit  gold  coin  did  then  and  there 
pass,  utter,  and  publisi),  [or  sell,]  and  did  then  and  there  attempt 
to  pass,  utter,  and  publish,  [or  sell  or  bring  into  the  United 
States  from  a  foreign  place,  with  intent  to  pass,  utter,  publish, 
and  sell  as  true,  the  aforesaid  false,  forged,  and  counterfeit  coin,] 
with  intent  one  C.  D.  lo  injure  and  defraud,  he  the  said  A.  B. 
then  and  there  well  knowing  the  said  piece  of  gold  coin  to  be 
false,   forged,  and   counterfeit;    against  the  peace    of  the  said 


'  Acts  of  3d  March,  1825,  §  20,  and  of  2lst  April,  1806,  §  1 ;  Gordon's  Digest, 
art.  3628,  p.  710,  711.  2  Ibid. 

18 


138  FORGEUY  AND  COUNTERFEITING. 

United  States,  and  contrary  to  the  form  of  the  statute  of  the  said 
United  States  in  sucli  case  made  and  provided.^ 

176.  For  debasing  the  Coin  of  the  United  States,  by  an  Officer 
employed  at  the  Mint.'^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of 
on  at  he  heing  then  and  there  a  person  and  officer 

employed  at  the  mint  of  the  United  States,  on  the  said 
day  of  at  aforesaid,  did   debase   and    make  worse 

certain  pieces,  to  wit,  ten  pieces  of  gold  coin,  called  eagles, 
(which  had  been  struck  and  coined  at  the  said  mint  of  the  United 
States,)  as  to  the  proportion  of  fme  gold  therein  contained,  and 
which 'were  then  and  there  by  the  said  A.  B.,  he  being  such 
person  and  officer  employed  in  the  said  mint  of  the  said  United 
States  as  aforesaid,  made  of  less  weight  and  value  than^ie  same 
ou<''ht  to  be  by  the  provisions  of  the  several  acts  and  laws  of  the 
said  United  States  relative  thereto,  through  the  default  and  con- 
nivance of  the  said  A.  B.,  he  being  then  and  there  such  person 
and  officer  employed  as  aforesaid  in  the  said  mint,  for  the  pur- 
pose of  unlawful  profit  and  gain,  and  with  an  unlawful  and  hau- 
dulent  intent,  to  debase,  make  worse,  and  render  of  no  value  the 
aforesaid  ten  pieces  of  gold  coin  ;  against  the  peace  of  said 
United  States,  and  contrary  to  the  form  of  the  statute  of  said 
United  States  in  such  case  made  and  provided. 

177.   For  fraudulently   diminishing   the    Coin    of  the    United 

States.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of 
on  at  did  unlawfully,  fraudulently,    and   for  gain's 

sake,  impair,  diminish,  falsify,  scale,  and  lighten  certain  pieces, 
to  wit,  ten  pieces  of  gold  coin,  called  eagles,  which  had  been 
coined  at  the  mint  of  the  United  States,  with  intent  to  defraud 
some  person,  to  the  said  jurors  unknown  ;  against  the  peace  of 
said  United  States,  and  contrary  to  the  form  of  the  statute  of 
said  United  States  in  such  case  made  and  provided.'' 

1  Section  21  of  the  same  statute,  against  the  forgery  and  counterfeiting  of  cop- 
per coin,  is  in  the  same  words  as  section  20,  using  the  words  "  coppercoin," 
instead  of  "  gold  and  silver  coin." 

2  Act  of  3d  March,  1825,  §  21 ;  Gordon's  Digest,  art.  3630,  p.  711. 

3  Act  of  21st  April,  1806,  §  3  ;  Gordon's  Digest,  art.  3631,  p.  711. 

*  If  the  coin  debased  was  foreign  gold  or  silver,  then  say,  "  which  said 
gold  coin  were  ten  pieces  of  foreign  gold  coin,  which  were  by  the  laws  of  the 
United  States  made  current,  and  were  in  actual  use  and  circulation,  as  money, 
within  the  said  United  States." 


GAMING  AND  GAMING-HOUSES.  J 39 


GAMING  AND  GAMING-HOUSES. 

178.  For  playing  at  Cards  at  a  House  of  Entertainment} 
The  jurors  Uc,  upon  their  oath  present,  tliat  A.  B.,  of  &:c  , 
?f  A'A  f  .  u  ^^'?S  ""  person  of  idle  and  dissolute  habits  of 
Jile,  did  play  with  cards,  at  a  certain  unlawful  game,  called  all- 
lours,  with  one  C.  D.,  in  a  certain  tavern  and  house  of  entertain- 
ment there  situate,  kept  by  one  E.  F.,  the  same  being  a  place 
.censed  for  reta,  mg  spirituous  liquors,  and  the  said  cauls,  with 
which  said  unlawful  game  was  played,  being  implements  used  in 
gaming  ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  lorm  of  the  statute  in  such  case  made  and  provided. 

179.  For  exposing  to  View  Implements  of  Gaming.^ 
The  jurors  &c.,  upon  their  oath  present,   that  A.  B.,  of  &ic 
being  a  person  of  idle  and   dissolute  habits  of  life,  on  at 

difl  expose  to  view  certain  cards,  [dice,  or  billiards,  as 
the  case  may  Je,]  the  same  being  implements  used  in  gamin-  in 
a  certain  tavern  and  house  of  entertainment  there  situate  ""the 
said  tavern  and  house  of  enlcrtainment  being  a  place  licensed  for 
retailing  spirituous  liquors,  kept  by  one  C.  D.  ;  and  that  he  the 
said  A.  13.  was  seen  sitting  at  a  certain  table  in  the  said  tavern 
and  house  of  entertainment  with  the  said  implements  before  him  • 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
lorm  of  the  statute  in  such  case  made  and  provided. 

180.  For  winning  Money  by  Gaming  :    On  the  third  Section  of 
the  statute  oj  Massachusetts  of  1135,  c.  58. 
The  jurors  &c.,  upon  their  oath  present,  that  A.  B     of  k.c 
being  a  person  of  idle  and  dissolute  habits  of  life  on        '  at 
did  play  u.ih  cards,  at  a  certain  unlawful  game,  called  all-fours 
with  one  C.  D.,  in  a  certain  tavern  and  house  of  entertainment 
there  situate  and  kept  by  one  E.  F.,  (the  same  beinfa  pl  cet 
censed   for  retailing  spirituous   liquors;)    and  that  he   the   said 
A    «    by  playing  at  the  said  unlawful  game  with  the  said  C  D 
did  then  and  there   unlawfully  win  of  the   said   C.  D     at  one 
time  and   sitting,  and   by  gaming  and  betting  as  aforesaid    more 
hanthe  sumol  three  dollars  and  ihirty-thi'ee  cents    nmonev 
to  wit,  the  sum  of  ten  dollars,  at  the  said  unlawful  game  of  aT 

»  On  the  fifth  section  of  the  statute  of  Massachusetts  of  1785,  c.  58 
On  the  same  section  and  statute. 


140  GAMING  AND  GAMING-HOUSES. 

fours,  in  manner  and  form  aforesaid,  the  said  cards,  with  which 
said  unlawful  game  was  played,  being  implements  used  in 
gaming  ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

181.  For  keeping  a  common  Gaming-Honse  for  Billiards :  On 

''the  Statute  of  11 9S,  c.  1,  §  1. 

The  jurors  &£c.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
being  a  person  of  idle  and  dissolute  habits  of  life,  on  and  on 

divers  other  days  and  times  between  that  day  and  the  day  of  the 
finding  of  this  bill,  at  in  the  county  aforesaid,  did  unlawfully 

keep,  and  suffer  to  be  kept,  a  table  for  the  purpose  of  playing  at  a 
certain  unlawful  game,  called  billiards,^  in  a  certain  house  there 
situate,  belonging  to  him  the  said  A.  B.,  and  by  him  occupied, 
for  the  purpose  of  lucre  and  gain,  he  the  said  A.  B,  being  then 
and  there,  and  during  all  the  time  aforesaid,  an  innholder,  tavern- 
keeper,  and  licensed  as  a  retailer  of  spirituous  liquors  in  the  said 
town  of  B.,  and  that  he  the  said  A.  B.,  on  the  said  days  and 
times  there,  did  wittingly  and  willingly  suffer  and  allow  divers 
idle  and  ill-disposed  persons,  whose  names  are  to  the  jurors 
aforesaid  as  yet  unknown,  to  play  therein  at  the  said  unlawful 
game  of  billiards,  and  on  the  days  and  times  aforesaid,  at  B. 
aforesaid,  did  unlawfully,  wittingly,  and  willingly  suffer  and  al- 
low the  said  idle  and  evil-disposed  persons  to  be  and  remain 
therein,  playing  and  gaming  at  the  said  unlawful  game  of  bil- 
liards, for  divers  large  and  excessive  sums  of  money ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

182.  For  keeping  a  private  Billiard  Table  for  hire,  <^c. :    On 

the  second  Section  of  the  Statute  o/*1798,  c.  20. 

The  jurors  he,  upon  their  oath  present,  that  A.  B,,  of  &;c., 
being  a  person  of  idle  and  dissolute  habits  and  manners,  on 
and  on  divers  other  days  and  times  between  that  day  and  the  day 
of  the  finding  of  this  bill,   at  in  the  county  aforesaid,  (the 

said  A.  B.  being  then  anil  there  a  person  not  licensed  as  an  inn- 
holder,  tavern-keeper,  victualler,  or  retailer  of  spirituous  liquors,) 
did  keep  and  suffer  to  be  kept,  in  a  certain  house  and  building 
there  situate,  and  by  him  actually  occupied  and  improved,  a  cer- 
tain table  for  the  purpose  of  playing  at  an  unlawful  game  called 
billiards,  for  iiire,  gain,  and  reward,  and  did  then  and  there,  and 

'  Or  cards  or  dice,  as  the  case  may  be. 


LARCENY  AND  ROBBERY.  141 

on  the  days  and  times  aforesaid,  there  allow  and  suffer  divers  idle 
and  evil  disposed  persons,  whose  names  are  to  the  jurors  afore- 
said as  yet  unknown,  for  hire,  gain,  and  reward,  to  resort  to  the 
same  table,  for  the  purpose  of  playing  at  the  said  unlawful  game 
called  billiards  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

183.  For  'playing  at  Billiards  :    On  the  third  Section  of  the 
Statute  0/179S,  c.  20. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &c., 
being  an  idle  and  dissolute  person,  on  and  on  divers  other 

days  and  times  between  that  day  and  the  day  of  the  finding  of 
this  bill,  at  in  the  county  aforesaid,   did  play  at  a  certain 

unlawful  game,  called  billiards,  at  a  table  kept  and  made  use  of 
for  that  purpose  by  one  C.  D.,  in  a  certain  house  and  building 
there  situate,  by  him  the  said  C.  D.  actually  occupied  and  im- 
proved ;  he  the  said  C.  D.  being  then  and  there  a  person  not  li- 
censed as  an  innholder,  tavern-keeper,  victualler,  or  retailer  of 
spirituous  liquors,  which  said  table  was  then  and  there  kept  and 
maintained  by  the  said  C.  D.  in  the  house  and  building  aforesaid, 
for  the  purpose  of  playing  at  the  said  unlawful  game,  called  bil- 
liards, and  for  hire,  gain,  and  reward  ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.^ 


LARCENY  AND  ROBBERY. 

184.  For  simple  Larceny,  at   Common  haw,  for  stealing  the 
Property  of  several  Persons.^ 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  late  of 
Sic,  laborer,  on  at  aforesaid,  in   the  county  afore- 

^  For  keeping  a  common  gaming-house,  see  2  Chitt.  676,  677-  For  keeping 
a  common  E.  0.  Table,  2  Chitt.  675. 

2  3  Chitt,  960 ;  Stark.  426  ;  Cro.  C.  C.  406,  (6th  Ed.)  When  the  goods  of 
several  persons  are  taken  at  the  same  time,  the  indictment  may  include  the 
whole  ;  but  not  so  if  taken  at  different  times;  Staik.  427,  note  (e) ;  3  Chitt. 
960,  note  (a.)  The  value  of  each  article,  and  the  name  of  each  owner,  must 
be  separately  and  specially  alleged.  When  the  article  stolen  is  money,  it  must 
be  alleged  to  be  "  of  the  moneys  "  of  the  said  [the  owner,]  instead  of  the 
goods  and  chattels. 


142  LARCENY. 

said,  one  silver  spoon  of  ihc  value  of  two  dollars,  of  the  goods 
and  chattels  of  one  C.  D.,  and  two  candlesticks  of  the  value  of 
one  dollar,  of  the  goods  and  chattels  of  E.  F.,  then  and  there  in 
the  possession  of  C.  D.  and  E.  F.  being  found,  feloniously  did 
steal,  take,  and  carry  away  ;  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 

185.  For  simple  Larceny:    On  the  1st  Section  of  the  Statute 

of  Massachusetts,  of  1804,  ch.  143. 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  Sec, 

on  at  in   the  county   aforesaid,  one  silver  spoon  of 

the  value  of  five  dollars,  of  the  goods  and  chattels  of  one  C.  D., 
then  and  there  in  the  possession  of  said  C.  D.  being  found,  felo- 
niously did  steal,  take,  and  carry  away  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

186.  For  breaking  and  entering  a  Shop  in  the  J^ight,  and  com- 
mitting a  Larceny  therein  :  On  the  fourth  Section  of  the 
Statute? 

The  jurors  &,c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,    laborer,  on  the  day  of  now  last  past,    at    B. 

aforesaid,  in  the  county  aforesaid,  the  shop  of  one  A.  B.  there 
situate,  in  the  night  time  did  break  and  enter,  and  sundry  bank 
bills,  amounting  together  to  the  sum  of  one  hundred  dollars,  and 
of  the  value  of  one  hundred  dollars,  and  [here  insert  all  the  ar- 
ticles stolen,  alleging  the  kind,  number,  and  value  of  each,'\  of 
the  goods  and  chattels  of  the  said  A.  B.,  then  and  there  in  the 
shop  aforesaid  being  found,  feloniously  did  steal,  take,  and  carry 
away  in  the  shop  aforesaid  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 


*  In  indictments  for  stealing  any  of  the  articles  mentioned  in  this  section  of 
the  statute,  the  description  of  the  article  must  follow  the  precise  words  of  the 
statute  ;  as  "  a  promissory  note  given  for  the  sum  of  $  , "  "  a  certain  deed 
and  writing,  containing  a  conveyance  of  lands,"  &c.  If  the  article  stolen  be 
money,  say,  "  sundry  pieces  of  silver  coin,  current  within  this  Commonwealth, 
amounting  together  to  the  sum  of  five  dollars,  of  the  moneys  of  him  the  said 
A.  B." 

2  The  same  form  is  to  be  adopted  for  a  larceny  in  a  ware-house,  or  oflBce,  not' 
adjoining  to,  or  occupied  with  a  dwelling-house. 


LARCENY.  143 

187.  For  breaking  and  entering  a  Vessel  in  the  JYight  Time 
and  committing  a  Larceny  therein  :  On  the  fourth  Section  of 
the  Statute. 

The  jurors  &ic.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day   of  now  last  past,  at   B. 

aforesaid,  in  the  county  aforesaid,  a  certain  vessel  of  one  A.  B.,^ 
called  the  Sally  of  Boston,  within  the  body  of  the  said  county  of 
S.,  then  and  there  lying  and  being,  in  the  night  time,  did  break 
and  enter,  and  one  trunk  of  the  value  of  five  dollars,  and  [here 
state  the  kind  and  value  of  each  articlcjl  of  the  goods  and  chat- 
tels of  one  E.  F.,  in  the  trunk  aforesaid  then  and  there  contained, 
and  in  the  vessel  aforesaid  then  and  there  being  found,  felonious- 
ly did  steal,  take,  and  carry  away  in  the  vessel  aforesaid ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

188.  For  entering  a  Dwell ing-Honse  in  the  JVight  Time,  with- 
out hreakvig,  the  Owner  being  therein,  and  put  in  Fear  :  On 
the  fifth  Section  oj  the  Statute.^ 

The  jurors  &tc.,  upon  their  oalh  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  dwelling-house  of  one  A.  B., 
there  situate,  in  the  night  time  did  ent'^T,  without  breaking  the 
same,  he  the  said  A.  B.,  his  wife,  and  divers  others  of  his  family, 
in  the  dwelling-house  aforesaid  then  and  there  being,  and  in 
bodily  fear  and  danger  of  his  and  their  lives,  by  him  the  said 
C.  D.  being  then  and  there  feloniously  put ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

189.  For  breaking  and  entering  a  Dwelling-House  in  the  Day 
Time,  the  Owner  being  therein,  and  put  in   Fear  :    On   the 

fifth  Section  of  the  Statute. 

The  jurors  &:c.,  upon  their  oath  present,  that  C.  D.,  of 
in  the  county   aforesaid,   laborer,   on  the  day  of 

•  It  is  said  not  to  be  necessary  to  insert  the  name  of  the  owner  of  the  ves- 
sel. If  he  is  known,  there  is  the  same  reason  for  it  as  for  inserting  the  name  of 
the  owner  of  a  house.  If  the  owners'  name  or  names  are  not  known,  it  should 
be  stated,  "  that  the  names  of  the  owners  are  to  the  jurors  unknown." 

*  Stark.  444.  It  is  essential  to  aver  that  the  person  in  th6  dwelling-house 
was  put  in  fear  of  his  life  by  the  defendant.  See  also  Leach,  771  ;  East,  P.  C. 
635. 


144  LARCENY. 

now  last  past,  at  B.  aforesaid,  in  the  county  aforesaid,  the  dwell- 
ing-house of  one  A.  B.,  there  situate,  in  the  day  time  did  break 
and  enter,  he  the  said  A.  B.,  his  wife,  and  divers  others  of  his 
family,  in  the  dwelling-house  aforesaid  then  and  there  being, 
and  in  bodily  fear  and  danger  of  his  and  their  lives,  by  the  said 
C.  D.,  being  then  and  there  feloniously  put ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

190.  For  breaking  and  enierins;  an  Ont-Tlouse,  aJjoining  a 
DweUing-1  louse  c^c,  in  the  Day  Time,  the  Owner  being 
therein,  and  put  in  fear :  On  the  fifth  Section  of  the  Statute.^ 

The  jurors  he,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,    laborer,    on    the  day  of  now  last  past,  at  B. 

aforesaid,  in  the  county  aforesaid,  a  certain  out-house,  called  a 
wood-house,  adjoining  to,  and  occui)!ed  with  the  dwelling-house 
of  one  A.  B.,  there  situate,  in  die  day  time  did  break  and  enter, 
he  the  said  A.  B.,  his  wife,  and  divers  others  of  his  family  in  the 
said  dwelling-house  then  and  there  being,  and  in  bodily  fear  and 
danger  of  his  and  their  lives,  by  the  said  C.  D.,  being  then  and 
there  feloniously  put ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

191.  For  committing  a  Larceny  in  the  Day  Time,  in  a  Dwel- 

ling-House:  On  the  sixth  Section  of  the  Statute. 

The  jurors  he,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  two  sheets  of  the  value  of  six 
dollars,  one  surloui-coat  of  the  value  of  ten  dollars,  and  one  hat 
of  the  value  of  five  dollars,  of  the  goods  and  chattels  of  one 
A.  B.,  then  and  there  in  the  dwelling-house  of  him  the  said 
A.  B.^  being  found,  feloniously  did  steal,  take,  and  carry  away 
in  the  dwelling-house  aforesaid  ;  against  the  peace  of  said  Coni- 


1  Similar  forms  are  to  be  adopted  for  breaking  and  entering  in  the  day  time 
the  other  buildings,  ships,  or  vessels,  mentioned  in  this  section,  following  the 
description  of  the  buildings  or  vessels  as  in  the  statute. 

*  If  the  goods  stolen  belong  to  one  person,  and  the  dwelling-house  in  which 
they  are  stolen  belongs  to  another  person,  it  must  be  so  alleged  in  the  indict- 
ment. The  same  form  as  the  last  is  to  be  adopted  for  larcenies  in  the  other 
buildings,  ships,  or  vessels,  mentioned  in  this  section,  the  allegation  in  the  in- 
dictment being  made  conformable  to  the  fact. 


LARCENY.  145 

monwealth,  and  contrary  to  tlie  form  of  the  statute  in  such  case 
made  and  provided. 

1 92.  For  breaking  and  entering  a  Meeting-House  in  the  JVight 
Time,  and  conunittin's^  a  Larceny  therein :  On  the  sixth  Sec- 
tion of  the  Statute.^ 

The  jurors  «Scc.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  meeting-house  of  the  first  parish 
in  said  B.,  there  situate,  and  erected  for  public  uses,  to  wit,  for 
the  public  worship  of  God,  in  the  night  time  did  break  and  enter, 
and  two  silver  cups,  of  the  value  oi"  fifiy  dollars,  of  the  goods 
and  chattels  of  the  members  of  the  first  church  of  Christ^  in  the 
said  town  of  B.,  whose  names  arc  to  the  jurors  aforesaid  un- 
known, then  and  there  in  the  meeting-house  aforesaid  being 
found,  felonioubly  did  steal,  take,  and  carry  away  in  the  meeting- 
house aforesaid  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

193.  For  brcalcing  and  entering  a  Court- Jloitse  in  the  JVight 
Time,  and  conunitting  a  Larceny  therein  :  On  the  sixth  Sec- 
tion of  the  Statute.^ 

The  jurors  Sec,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  court-house  of  the  said  county 
of  S.,  there  situate,  and  erected  for  public  uses,  to  wit,  for  hold- 
ing the  judicial  courts  in  the  said  county  of  S. ;  in  the  night  time 
did  break  and  enter,  and  [Aere  insert  the  articles  stolen,  and 
allege  the  value  of  c«cA,]  of  the  goods  and  chattels  of  the  said 
county  of  S.,  then  and  there  in  the  court-house  aforesaid  being 
found,  feloniously  did  steal,  take,  and  carry  away  in  the  court- 

'  If  the  property  stolen  belongs  to  an  episcopal  church,  it  must  be  alleged 
to  be  "  in  the  parishioners  of  the  said  parish,  in  the  custody  of  E.  F.  and  G.  H., 
then  church  wardens  of  said  parish."     For  this  see  3  Chitt.  992  ;  Stark.  448. 

*  If  the  property  stolen  belongs  to  the  parish  or  to  an  individual,  and  not  to 
the  church,  it  must  be  so  alleged  in  the  complaint.  See  3  Chitt.  992 ;  Stark. 
448. 

'  If  the  larceny  be  committed  in  a  town-house,  it  must  be  alleged  to  be 
the  property  of  the  town  in  which  it  is  situated,  by  its  corporate.name.  If  in  a 
college  or  academy,  the  property  must  be  alleged  to  be  in  the  college  or  acade- 
my, by  its  corporate  name,  and  they  must  be  alleged  to  be  buildings  erected  for 
public  uses. 

19 


146  LARCENY. 

house  aforesaid  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

194.  For  hrenhing  and  entering  a  Stable  in  the  JVight  Time, 
and  committing  a  Larceny  therein  :  On  the  sixth  Section 
of  the  Statute. 

The  jurors  &c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  stable  of  one  A.  B.,  there  situate, 
in  the  night  time  did  break  and  enter,  and  one  gelding  of  the 
value  of  one  hundred  dollars,  one  saddle  of  the  value  of  ten  dol- 
lars, and  one  bridle  of  the  value  of  five  dollars,  of  the  goods  and 
chattels  of  the  said  A.  B.,  then  and  there  in  the  stable  aforesaid 
being  found,  feloniously  did  steal,  take,  and  carry  away  in  the 
stable  aforesaid  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided.^ 

1 95.  For  stealing  from  the  Person,  openly  and  violently :  On 

the  eighth  Section  of  the  Statute,' 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.  of 
in  the  county  aforesaid,  laborer,  on  the  day  of  now  last 

past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, one  silver  watch  with  a  steel  chain,  of  the  value  of  twenty 
dollars,  of  the  goods  and  chattels  of  one  A.  B.,  then  and 
there,  openly  and  violently,  from  the  person  of  him  the  said 
A.  B.,  feloniously  did  steal,  take,  and  carry  away;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

196.  For  stealing  from  the  Person  privily  and  fraudulently: 

On  the  eighth  Sectio7i  of  the  Statute.^ 

The  jurors  he,  upon  their  oath  present,  that  C.  D.,  of  said  B., 
laborer,  on  the  day  of  now  last  past,  at  B.  aforesaid, 

in  the  county  aforesaid,  sundry  bank  bills,  amounting  together  to 
the  sum  of  thirty  dollars,  and  of  the  value  of  thirty  dollars,  and 

'  The  same  form  is  to  be  used,  when  the  larceny  is  committed  in  anj'  of  the 
other  private  buildings,  mentioned  in  this  section  of  the  statute,  always  describ- 
ing the  buildings  in  the  very  words  of  the  statute. 

*  2  Stark.  448 ;  3  Chitt.  992;  Cro.  C.  A.  178  ;  Cro.  C.  C.  443,  (6th  Ed.) 

'  Cro.  C.  C.  412,  (6th  Ed.) 


LARCENY.  147 

sundry  pieces  of  silver  coin,  current  by  law  and  usage  within  this 
Comnnonvvealth,  amounting  together  to  the  sum  of  five  dollars, 
and  of  the  value  of  five  dollars,  of  the  goods,  chattels,  and  moneys 
of  one  A.  B.,  then  and  there,  privily  and  fraudulently,  from 
the  person  of  him  the  said  A.  B.,  feloniously  did  steal,  take, 
and  carry  away ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

197.  For  a  second  Conviction  of  Larceny :  On  the  third  Sec- 
tion of  the  Statute. 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last   past,    at  B. 

aforesaid,  in  the  county  aforesaid,  one  mare  of  the  value  of  fifty 
dollars,  one  saddle  of  the  value  of  Cive  dollars,  and  one  bridle  of 
the  value  of  two  dollars,  of  the  goods  and  chattels  of  one  A.  B., 
then  and  there  in  the  possession  of  the  said  A.  B.  being  found, 
feloniously  did  steal,  take,  and  carry  away;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  heretofore,  to  wit,  at 
the  Supreme  Judicial  Court,  begun  and  holden  at  in  and 

for  the  county  of  on  the  Tuesday  of  in  the 

year  of  our  Lord   one  thousand   eight  hundred  and  the 

said  C.  D.  was  duly  and  legally  convicted,  for  that  he  the  said 
C.   D.   on  with  force   and   arms,   at  B.  aforesaid,  in  the 

county  aforesaid,  seventeen  yards  of  linen  cloth,  of  the  value  of 
five  dollars,  of  the  goods  and  chattels  of  one  E.  F.,  in  his  pos- 
session then  and  there  being  found,  feloniously  did  steal,  take, 
and  carry  away  ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


PUECEDENTS    FOR    LaRCENY,  ON  THE  STATUTES   OF    THE 

United  States. 

198.  Against  an  Officer  of  the  Bank  of  the  United  States,  for 
a  Larceny  of  the  Property  of  the  Bank :  On  the  Statute 
of  2d  March.,  1816,  §   18. 

The  jurors  Slc,  upon  their  oath  present,  that  A.  B.,  of  &c., 
on  at  he  the  said  A.  B.  being  then  and  there  a 


148  LARCENY. 

person  employed  as  cashier  [  president,  cicr/c,  or  servant,  as  the 
case  may  be,]  in  the  bank  of  the  United  States,  created  and  es- 
tablished by  an  act,  entitled  "  An  act  to  incorporate  the  sub- 
scribers to  the  bank  of  the  United  States,"  passed  on  the  tenth 
day  of  April,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  sixteen,^  one  thousand  dollars  of  the  money,  goods,  and 
chattels,  belonging  to  the  said  bank  of  the  said  United  States," 
of  the  value  of  one  thousand  dollars,  then  and  there  in  the  pos- 
session of  the  said  bank  of  the  said  United  States  being  found, 
feloniously  did  steal,  take,  and  carry  away  ;  against  the  peace  of 
said  United  States,  and  contrary  to  the  form  of  the  statute  of 
said  United  States  in  such  case  made  and  provided. 

199.  Ao-ainst  an  Officer  of  the  Bank  of  the  United  States  for 
embezzling  Money,  Goods,  ^c. :  On  the  latter  Clause  of  the 
same  Section  of  the  Act. 

The  jurors  Sec,   upon  their  oath  present,  that  A.  B.,  of  Sec, 
on  at  he  the   said   A.  B.   being  a  person  then  and 

there  employed  as  cashier  \if  employed  as  any  other  officer  it 
must  he  so  stated,]  in  the  Bank  of  the  United  States,  created  and 
established  by  an  act,  entitled  "  An  act  to  incorporate  the  sub- 
scribers to  the  Bank  of  the  United  States,"  passed  he.  [as  in 
the  preceding  precedent  ;  see  also  note  {\)  to  the  preceding  prece- 
dent^ one  thousand  dollars  of  the  money,  goods,  and  chattels, 
belonging  to  the  said  Bank  of  the  said  United  States,  {see  note 
(2)  to  the  preceding  precedent^  of  the  value  of  one  thousand 
dollars,  in  the  possession  of  the  said  Bank  of  the  said  United  States 
being  found,  did  then  and  there  fraudulently  embezzle,  secrete, 
and  make  away  with,  which  said  sum  of  one  thousand  dollars  he 
the  said  A.  B.  had  received,  and  which  came  to   his  possessiolf* 

*  If  the  officer  charged  be  an  officer  in  amj  office  of  discount,  then  the  aDe- 
gation  must  be  "  he  the  said  A.  B.  being  then  and  there  a  person  employed  as 
cashier  [or  other  officer,  as  the  case  may  &e,]  in  a  certain  office  of  discount 
and  deposit,  established  by  the  directors  of  the  bank  of  the  United  States,  in  the 
town  of  within  the  state  of 

The  same  form  may  be  adopted  for  a  larceny  of  any  other  article  or  species 
of  property  mentioned  in  the  statute,  as  a  bond,  bill,  bank  note,  &c.  giving  a 
general  description  of  it.— See  act  of  3d  March,  1823,  §  18  ;  Gordon's  Digest, 
art.  3697,  p.  725. 

2  If  the  property  or  article  stolen  did  not  belong  to  the  bank,  but  was  de- 
posited, then  allege  as  follows ;  "  of  the  money,  goods,  and  chattels  of  one 
C.  D.,  then  and  there  deposited  in  said  bank  of  the  United  States  by  said 
C.  D.,  of  the  value,"  &c. 


LARCENY.  149 

and  custody  by  virtue  of  his  said  employment  as  such  cashier 
as  aforesaid  ;  against  the  peace  of  said  United  States,  and  con- 
trary to  the  form  of  the  statute  of  said  United  States  in  such  case 
made  and  provided. 

200    For  Larceny  and  Embezzlement  of  public  Property:     On 
the  Statute  of  the  United  States  of  30th  April,  1790,  §  26.^ 

The  jurors  &c.,  on  their  oath  present,  that  A.  B.,  of  &ic., 
°"  .   ^'  being  a  person  liaving  the  charge  and  custody 

ot  certam  arms  and  other  ordnance  and  munitions  of  war  be- 
longing to  the  United  States,  certain  arms,  to  wit,  ten  muskets,^ 
of  the  value  of  one  hundred  dollars,  of  the  property,  goods, 
and  chattels  of  the  said  United  States,  in  the  charge  and  cus- 
tody of  the  said  A.  B.  then  and  there  being,  wittingly,  advisedly, 
and  of  purpose  to  hinder  and  impede  the  service  of  the  said 
United  States,  and  for  lucre  and  gain,  did  embezzle,  steal,^  pur- 
loin, and  convey  away;  against  the  peace  of  said  United  States, 
and  contrary  to  the  form  of  the  statute  of  said  United  States  in 
such  case  made  and  provided. 

201 .  Jlgainst  an  Assistant  Postmaster,  for  stealing  Money  which 
came  into  his  Hands  as  Assistant  Postmaster  :     On  the  Act  of 
2d  March,  1825,  §  2 1.'*      See  Gordon's  Digest,  Art.  3G11 
J).  704.  °  ' 

The  jurors  &c.,  upon  their  oath  present,  that  A.  M.,  of  &c 
Esquire,  on  at  he   the  said  A.  M  being  then  and 

there  a  person  employed  in  one  of  the  departments  of  the  post- 
office  establishment  of  the  United  States  of  America,  to  wit,  as 
an  assistant  of  the  deputy  postmaster  of  the  post-office,  legally 
established  and  appointed  by  the  postmaster-general  of  the 
United  States,  within  the  said  town  of  Granby,  feloniously  did 
steal,  take,  and  carry  away  sundry  bank  notes,  amounting  to- 
getlier  to  the  sum  of  two  hundred  and  seventy  dollars,  and  of  the 
value  of  two  hundred  and  seventy  dollars,  of  the  goods,  chattels, 

'  Gordon's  Digest,  art.  3641,  p.  714. 

'  The  same  form  is  to  be  adopted,  as  to  all  the  other  articles  and  property 
enumerated  in  the  statute. 

»  This  section  of  the  statute  is  drawn  in  a  very  incorrect  manner.  The  word 
purlom  IS  used  in  the  former  part  of  it,  and  the  word  stolen  in  .the  latter  part, 
for  the  same  purpose. 

*  This  indictment  was  drawn  by  Professor  Ashraun  of  the  law  school  in  Cam- 
bndge.    The  case  was  twice  tried  without  obtaining  a  verdict. 


1 50  ROBBERY. 

and  property  of  one  N.  P.  and  one  A.  M.  ;  which  said  bank  notes 
were  then  and  there  feloniously  taken  and  stolen  as  aforesaid  by  the 
said  A.  M.  out  of  a  certain  letter,  which  came  to  the  hands  and 
possession  of  hini  the  said  A.  M.,  in  his  said  capacity  and  employ- 
ment as  such  assistant  post-master  as  aforesaid  ;  against  the 
peace  of  said  United  States,  and  contrary  to  the  form  of  the 
statute  of  said  United  Slates  in  such  case  made  and  provided. 

202.  Form  of  Indictment  for  Robbery  :    On  the  Statute  of  Mas- 

sachusetts  of  1S04,  c.   143.' 

The, jurors  fee,  upon  their  oath  present,  that  A.  B.,  of  &c., 
laborer,   on   the  day  of  now  last   past,   with   force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one   C.  ]).,   of  in   the   county   aforesaid,   feloniously  did 

make  an  assault,  and  him  the  said  C.  I).  A'u  hoJihj  fear  and 
danger  of  his  life  then  and  there  feloniously  did  put,)  and  one 
gold  watch,  of  the  value  of  one  hundred  dollars,  of  the  goods 
and  chattels  of  him  the  said  C.  D.,  from  the  person  and  against 
the  will  of  him  the  said  C.  D.,  then  and  there  feloniously,  and 
by  force  and  violence,  did  steal,  rob,  take,  and  carry  away ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

203.  For  a  capital  Robbery,  the  Prisoner  being  armed  with  a 
dangerous  fVeapon,  loith  Intent  to  kill  or  maim :  On  the 
first  Section  of  the  Statute  of  Massachusetts  o/"  1818,  c.  124. 

The  jurors  &sc.,  upon  their  oath  present,  that  M.  M.,  lately 
resident  in  INJedford,  in  the  county  of  ]\liddlesex,  laborer,  on  the 
day  of  now  last  past,  with  force  and  arms,  at  Med- 

ford  aforesaid,  in  the  county  aforesaid,  in  and  upon  one  J.  B. 
feloniously  did  make  an  assault,  and  him  the  said  J.  B.  (in  bodi- 
ly fear  and  danger  of  his  life  then  and  there  feloniously  did 
put^)  and  one  gold  watch,  with  a  gold  chain  and  seal,  of  the 
value  of  one  hundred  and  fifty  dollars,  of  the  goods  and  chattels 
of  him  the  said  J.  B.,  from  the  person  and  against  the  will  of 

'  2  Stark.  449,  notes  (A:)  and  (/).  It  is  not  necessary  to  allege  the  robbery  to 
have  been  committed  in  the  highway. 

2  Commonwealth  vs.  Humphries,  7  Mass.  R.  242  ;  where  it  is  decided,  that 
the  allegation  oi  force  and  violence  is  sufficient,  without  alleging  that  the  party 
robbed  was  put  in  fear.  See  other  precedents  in  3  Chitt.  806 ;  Cro.  C.  C. 
634,  (6th  Ed.)  ;  2  Stark.  449,  note  {m),  to  the  same  point ;  in  which  it  is  said, 
that  the  phrase,  " '  putting  him  in  fear,'  is  of  modem  introduction." 

'  Not  necessary. 


ROBBERY.  151 

him  the  said  J.  B.,  then  and  there  feloniously,  and  by  force  and 
violence,  did  steal,  rob,  take,  and  carry  away,  he  the  said  M.  M. 
being  then  and  there,  at  the  time  of  committing  the  assault 
and  robbery  aforesaid,  armed  with  a  dan2;crous  weapon,  to  wit, 
with  a  pistol,  with  intent  him  the  said  J.  13.  to  kill  and  maim  ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 

204.  For  a  capital  Robbery^  thePnsotier  being  armed  with  a  dan- 
gerous fVcaporif  and  actually  striking  and  wounding  the  Per- 
son assaulted  and  robbed  :  On  the  latter  Clause  of  the  first 
Section  of  the  Statute  of  1818,  c.   124. 

The  jurors  &c.,  upon  their  oath  present,  that  S.  C.  and  G.  C, 
both  lately  residents  in  B.  aforesaid,  laborers,  on   the  day 

of  now  last  past,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  in  and  upon  one  Ezra  Haynes  feloniously 
did  make  an  assault,  and  sundry  pieces  of  silver  coin,  current 
within  this  Commonwealth  by  the  laws  and  usages  thereof, 
amounting  together  to  the  sum  of  twelve  dollars,  and  of  the  value 
of  twelve  dollars,  of  the  moneys  and  property  of  him  the  said 
Ezra  Haynes,  from  the  person  and  against  the  will  of  him  the 
said  Ezra  Haynes,  then  and  there  feloniously,  and  by  force  and 
violence,  did  rob,  steal,  take,  and  carry  away,  and  that  they  the 
said  S.  C.  and  G.  C,  at  the  time  of  committing  the  assault  and 
robbery  aforesaid,  were  then  and  there  armed  with  a  certain 
dangerous  weapon,  made  of  iron,  called  a  heading-tool ;  and  be- 
ing then  and  there  so  as  aforesaid  armed,  they  the  said  S.  C. 
and  G.  C.  with  the  dangerous  weapon  aforesaid,  him  the  said 
Ezra  Haynes,  in  and  upon  the  face  and  head  of  him  the  said 
Ezra,  then  and  there  feloniously  did  actually  strike  and  wound ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 

'  This  was  the  indictment  in  the  case  of  the  Commonwealth  vs.  Michael 
Martin,  upon  which  the  prisoner  was  convicted  at  the  Supreme  Judicial  Court 
in  Middlesex,  October  Term,  A.  D.  1821,  and  afterwards  executed.  There  is  a 
learned  exposition  of  the  statute,  in  that  case,  by  the  late  Chief  Justice  Parker 
upon  the  questions  of  law  submitted  by  the  prisoner's  counsel,  17  Mass.  R. 
359.     This  was  the  first  case  that  was  tried  after  the  statute  was  passed. 

It  is  not  alleged  that  the  pistol  was  loaded.  It  might  have  been  difficult,  if 
not  impossible,  in  this  particular  case,  to  have  proved  that  fact,  and  the  court 
were  of  opinion,  that  a  pistol  might  be  a  dangerous  weapon,  whether  loaded  or 
not. 

'  This  was  the  indictment  in  the  case  of  the  Commonwealth  vs.  Clisby  ^ 
Close,  upon  which  they  were  convicted  at  the  Supreme  Judicial  Court,  Novem- 
ber Term,  in  Suffolk,  A.  D.  1821,  and  afterwards  executed. 


152  ROBBERY. 


205.  For  robbing  a  Carrier  of  the  Mail  of  the  United  States 
by  the  use  of  a  dangerous  JVeapon :  On  the  Act  of  Con- 
gress of  3d  March  ^1825,  §  22.^ 

The  jurors  k,c.,  upon  their  oath  present,  that  A.  B.,  of 
on  at  in   and   upon  one  C.  D.,  who  was  then  and 

there  a  carrier  of  the  mail  of  l^e  United  States  and  then  and 
tliere  intrusted  with  the  said  mail,  feloniously  did  make  an  as- 
sault ;  and  him  the  said  C.  D.  being  then  and  there  such  car- 
rier of  the  said  mail  as  aforesaid,  [in  bodily  fear  and  danger  of 
his  life  did  then  and  there  feloniously  put,Y  and  the  said 
mail  of  the  said  United  States,  containing  divers  valuable  letters, 
and  articles  of  property  of  great  value,  the  amount,  value, 
and  nature  of  which  are  to  the  jurors  aforesaid  yet  unknown, 
from  the  person  of  him  the  said  C.  D.,  being  then  and  there  such 
mail  carrier  as  aforesaid,  and  entrusted  with  the  said  mail  as 
aforesaid,  then  and  there  feloniously  and  by  force  and  violence 
did  rob,  steal,  take,  rfnd  carry  away  ;  and  that  he  the  said  A.  B., 
at  the  lime  of  committing  the  assault  and  robbery  aforesaid,  was 
then  and  there  armed  with  a  certain  dangerous  weapon,  called  a 
pistol ;  and  in  effecting  d)e  robbery  of  the  said  mail  as  aforesaid 
did  feloniously  wound  the  person  of  him  the  said  C.  D.  with 
the  pistol  aforesaid,  he  the  said  C.  D.  then  and  there  having  the 
custody  of  the  said  mail  as  aforesaid  ;  and  did  then  and  there 
feloniously  put  the  life  of  him  the  said  C.  D.,  then  and  there 
having  the  custody  of  the  said  mail  as  aforesaid,  in  jeopardy,  by 
the  use  of  the  said  dangerous  weapon  called  a  pistol ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of  the 
statute  thereof  in  such  case  made  and  provided. 

1  If  a  dangerous  weapon  was  not  used,  that  part  of  this  precedent  in  which 
it  is  alleged,  is  to  be  omitted,  and  the  precedent  will  then  be  correct  for  a  rob- 
bery not  capital. 

2  Not  necessary. 


LEWDNESS  AND  LASCIVIOUS  COHABITATION.  153 

LEWDNESS  AND  LASCIVIOUS  COHABITATION. 

20G.  For  Lewd  and  Lascivious   Cohabitation.^ 

The  jurors  &,c.,  upon  their  oath  present,  that  A.  B.,  of  &cc., 
on  at  and  from  that  clay  to  the  day  of 

in   the  year  of  did  lewdly  and  lasciviously  associate  and 

cohabit  with   one  C.    D.,   of  single   woman,   he  the  said 

A.  B.,  during  all  the  time  aforesaid,  heinj;  a  married  man  and 
havini;  a  lawful  wife  alive ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  &lc. 

207.  For  open,  gross  Lewdness,  and  Lascivious  Behaviour.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  Slc, 
on  at  was  guilty  of  open,   gross  lewdness  and   las- 

civious behaviour,  by  openly,  grossly,  lewdly,  and  lasciviously 
lying  on  a  bed  with   one  C.  D.,  of  single  woman,  in  a 

grossly  lewd,  lascivious,  and  indecent  pqsture,  with  his  naked- 
ness exposed,  for  the  space  of  one  hour ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

208.  At  common   Law,  fur  exposin<r  Defendants  naked  Body 
in  a  public  Street. 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
devising  and  intending  the  morals  of  the  people  of  this  Com- 
monwealth to  debauch  and  corrupt,  on  at  in  the 
county  aforesaid,  on  a  certain  common  and  public  higjiway  there 
situate,  in  presence  of  divers  citizens  of  said  Commonwealth 
then  and  there  being,  and  w'ithin  sight  and  view  of  the  said  citi- 
zens, through  and  in  the  said  highway  then  and  there  passing  and 
repassing,  unlawfully,  scandalously,  and  wantonly  did  expose  to 
the  view  of  the  said  persons  present,  and  so  passing  and  repass- 
ing as  aforesaid,  the  body  and  person  of  him  the  said  A.  B., 
naked  and  uncovered,  for  the  space  of  one  hour,  to  the  manifest 


1  Stntute  of  Massachusetts  1764,  ch.  40.  This  is  an  offence  at  common  law. 
4  Bl.  Coin.  64 ;  Hawk.  b.  1,  c.  5,  §  4.  The  cohabitation  must  be  a  dwelling 
and  living  together,  not  a  transient  interview.  Coni'itonwealthy.  Califfe,  10 
Mass.  R.  15S. 

"  The  act  must  be  open,  gross,  kc.  not  secret  or  piivate.  For  this  see  Com- 
monwealth V.  Catlin,  1  Mass.  R.  8. 

20 


]  54  LIBEL. 


corruption  of  public  morals  and  manners,  and  against  the  peace 
and  dignity  of  the  Commonwcaidi  aforesaid.^ 


LIBEL. 

20D.  For  puhlishins;  (I  ribellous  Letter,  imputing  the  Crime  of 
Theft  to  the  Prosccuiorr 

llic  jurors  &ic.,  upon  their  oatli  present,  that  A.  B.,  of&c, 
desis^niug  and  maliciously  intending  to  injure,  vilify,  and  defanie 
ihe  character  and  credit  of  one  C.  D.,  and  to  bring  him  into 
disgrace  and  infamy,  on  at  in  the  county  afoi-esaid, 

a  certain  false,  scandalous,  and  libellous  wriiing  against  him  the 
said  C.  D.,  and  of  and  concerning  him  tlie  said  C.  D.,  lalsely 
and  maliciously  did  frame  and  make  ;  and  in  the  name  of  him 
the  said  A.  B.  did  then  and  there  write  and  publish,  and  cause 
to  be  written  and  published,  in  the  form  of  a  letter,  directed  to 
him  the  said  C.  D.,  the  purport  and  efTect  of  which  said  writing 
is  as  follows  :  "To  C.  D.,  he,  [here  insert  the  letter  correctly, 
ivith  proper  inuendoes ;']  and  that  the  said  A.  B.,  with  intention 
to  injure,  abuse,  and  defanie  the  said  C.  I).,  and  to  bring  him 
into  contempt,  disgrace,  and  infamy,  the  said  false,  libellous,  and 
malicious  wriiing,  so  as  aforesaid  framed,  written,  and  made, 
afterwards,   to  wit,  on   the  said  day  of  in  the  year 

aforesaid,   at  aforesaid,  in  the  county   aforesaid,    to  one 

E.  F.,  and  to  divers  oilier  good  citizens  of  tlie  said  Commonwealth 
then  and  there  present,  did  maliciously  and  openly  deliver  and 
publish,  and  cause  to  be  openly  delivered  and  published,  to  the 
great  damage,  infamy,  and  scandal  of  him  the  said  C.  D.,  and 
a<^ainst  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

210.  For  a  Libel  upon  a  private  Individual.^ 

The  jurors  &lc.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  yeoman,  unlawfully  and  maliciously  con- 

triving and  intending   to  vilify  and   defame  one   C.  D.,  and  to 


1  See  10  Stat.  Tri.,  Ass.  93  ;  1  Sid.  168;  1  Keb.  §620;  1  Sess.  Ca.  231 ;  and 
Archib.  376. 

2  See  a  similar  precedent  3  Chitt.  889  ;  and  Cio.  C,  C.  421,  (6th  Ed.) 

3  3  Chitt.  888.  u 


LIBEL.  155 

bring  him  into  public  scandal  and  disgrace,  and  to  injure  and 
aggrieve  him   the  said   C.  D.,  on  at  in  the  county 

aforesaid,  unlawfully  and  maliciously  did  compose  and  publish, 
and  cause  to  be  composed  and  published,  a  certain  false,  scan- 
dalous, malicious,  and  defamatory  libel,  of  and  concerning  him 
the  said  C.  D.,  containing  therein,  amon<i;  other  things,  the 
false,  malicious,  defamatory,  and  libellous  words  and  matter  fol- 
lowing, that  is  to  say,^  [here  insert  and  state  the  libdloiis  mat- 
ter with  proper  inuendoes,  and  then  proceed  as  fallows  ;  ]  which 
said  false,  scandahHis,  malicious,  and  defamatory  libel,  he  the 
said  A.  B.,  afterwards,  to  wit,  on  the  day  of  in  the 

year  aforesaid,  at  in   the  county  aforesaid,  unlawfully  and 

maliciously  did  send  and  cause  to  be  sent  to  one  E.  F.,  in  the 
form  of  a  letter,  addressed  to  the  said  E.  F.,  and  did  tliereby, 
then  and  there,  unlawfully  and  maliciously  publish  and  cause  to 
be  published  the  aforesaid  libel,  to  the  great  damage  of  him  the 
said  C.  D.,  and  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

211.  For  a  Libel  upon  an  Attorney,  contained  in  a  Letter.^ 

The  jurors  &.c.,  upon  their   oath  present,  that  on  the 
day  of  at  in  the  county  aforesaid,  one  A.  B.  was  one 

of  the  attornies  of  the  Supreme  Judicial  Court  of  this  Common- 
wealth, and  had  been,  and  was,  before  the  composing,  writing, 
and  publishing  of  the  several  false,  malicious,  and  defamatory  libels 
hereinafter  mentioned,  retained  and  employed  by  one  C.  D.,  in 
the  business  and  employment  of  his  tlie  said  A.  B.'s  profession 
of  an  attorney  at  law,  to  write  a  letter  to  one  E.  F.,  demanding 
payment  of  a  certain  sum  of  money,  to  wit,  the  sum  of  fifty 
dollars,  then  due  and  owing  from  the  said  E.  F.  to  the 
said   C.   D.,   and  that  the  said  E.  F.,  of  in  the  county 

aforesaid,  yeoman,  unlawfully  and  maliciously  contriving  and 
intending  to  injure,  scandalise,  vilify,  and  defame  the  said  A.  B., 
and  to  bring  him  into  public  scandal  and  disgrace,  and  to  injure, 

'  Great  judgment  should  be  used  in  selecting  the  libellous  part,  where  the 
whole  is  not  to  be  inserted,  and  when  it  is  unnecessary  or  improper  to  insert 
the  whole  publication.  It  is  most  judicious  to  insert  the  whole  in  all  cases 
when  the  subject  of  the  whole  is  the  same,  although  one  part  of  it  may  be  more 
libellous  tlian  another,  and  would,  of  itself,  be  sufficient  to  sup'port  the  indict- 
ment. 

*  See  a  similar  precedent,  3  Chitt,  894,  and  a  note  there,  in  which  it  is  said, 
that  "  this  iodictment  was  settled  by  a  very  eminent  pleader  now  at  the  bar." 


156 


LIBEL. 


prejudice,  and  ruin  liiin  in  his  said  business  and  profession  of  an 
attorney  at  law,  on  at  aforesaiil,    unlawfully    and 

maliciously  did  compose  and  write  a  certain  false,  scandalous, 
malicious,  and  dclauiatory  libel,  of  and  concerning  the  said  A.  B. 
in  bis  said  business  and  profession,  and  of  and  concerning  the 
demand  aforesaid,  so  as  aforesaid  made  by  the  said  A.  B.  on 
the  said  E.  F.  as  aforesaid  ;  containing  therein,  among  other 
things,  the  false,  malicious,  defamatory,  and  libellous  words  and 
matter  following,  of  and  concerning  the  said  A.  B.,  that  is  to  say, 
[^fiere  insert  the  libeUous  matter  with  proper  inuendoes  ;  ]  which 
said  false,  malicious,  and  defamatory  libel,  he  the  said  E.  F., 
afterwards,  to  wit,  on  the  day  of  in  the  year  afore- 

said, at  aforesaid,   unlawfully    and   maliciously   did  send 

and  cause  to  be  sent  to  the  said  C.  D.,  in  the  form  of  a  letter 
addressed  to  the  said  C.  D.,  and  thereby  then  and  there,  un- 
lawfully and  maliciously  did  publish  and  cause  to  be  published 
the  aforesaid  libel ;  against  the  peace  and'  dignity  of  the  Com- 
monwealth aforesaid. 

212.  Jlgninst  the  Printer  of  a  JS^ewspaper,  for  publishing  an 
Advertisement  by  a  married  Woman,  offering  to  become  a 
Mistress.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  late  of 
in  the  county  afoiesaid,  printer,  being  a  person  of  an 
immoral  and  depraved  mind  and  disposition,  and  unlawfully  con- 
triving and  intending  to  bring  the  state  of  matrimony  into  public 
contempt  and  discredit ;  to  corrupt  the  morals  of  the  people  of 
this  Commonwealth,  and  to  induce  the  citizens  thereof  to  com- 
mit the  crimes  of  fornication  and  adultery,  on  at 
did  unlawfully  and  wickedly  print  and  publish,  and  cause  and 
procure  to  be  printed  and  published,  in  a  certain  public  newspa- 
per, called  the  \_here  insert  the  title  of  the  newspaper.^  a  certain 
immoral  and  mischievous  libel  in  the  form  of  an  advertisement; 
which  said  immoral  and  mischievous  libel  is  of  the  purport  and 
effect  following,  to  wit,  \Jiere  insert  the  advertisement  verbatim,  with 
proper  inuendoes  ;  ]  to  the  great  scandal  and  reproach  of  religion, 
good  morals,  and  good  manners,  to  the  evil  and  pernicious  ex- 
ample ot  all  others  in  like  case  to  offend,  and  against  the  peace 
and  dignity  of  the  Commonwealth  aforesaid. 


»  3  Chitt.  887. 


LIBEL.  157 


213.  For  a  Libel,  by  hanging  Prosecutor  in  Effigy.^ 

The  jurors  &tc.,  upon  their  oath  present,  that  A.  B.,  of 
in  the  county  of  yjoman,  being  a  person  of  a  revengeful 

and  malicious  mind  and  disposition,  and  unlawfully  and  mali- 
ciously devising  and  intending  to  injure  and  vilify  the  good 
name  and  reputation  of  one  C.  D.,  aixl  to  bring  him  into  con- 
tempt, ridicule,  and  disgrace,  on  at  did  unlaw- 
fully and  maliciously  make,  and  cause  to  be  made,  a  certain 
gallows,  and  also  a  certain  eflisiy  and  figure,  intending  to  repre- 
sent the  person  of  the  said  C.  D.,  and  afterwards,  to  wit,  on  the 
same  day  and  year  aforesaid,  at  afoicsaid,  in  the  county 
aforesaid,  unlawfully  and  maliciously  did  erect  and  set  up,  and 
caused  and  procured  to  be  erected  and  set  up,  the  said  gallows, 
in  and  upon  a  certain  piece  of  ground  near  the  public  post-road 
and  common  highway  there  ;  and  kept  and  continued,  and  caused 
to  be  kept  and  continued  the  said  gallows,  so  there  erected  and 
set  up  as  aforesaid,  for  the  space  of  eigiit  days  then  next  fol- 
lowing ;  and  during  all  thjit  time,  at  aforesaid,  in  the  county 
aforesaid,  the  said  A.  B.  unlawfully  and  maliciously  hung  up 
and  suspended,  and  kept  hung  up  and  suspended,  and  caused 
and  })rocured  to  be  hung  up  and  suspended,  and  to  be  kept  hung 
up  and  suspended,  the  said  effigy  and  figure  so  intended  to 
represent  the  said  C.  D.,  to,  and  upon  the  said  gallows,  and 
kept  and  continued,  and  caused  and  procured  to  be  kept  and 
continued,  the  said  effigy  and  figure,  intending  to  represent  the 
said  C.  D  as  aforesaid,  so  hung  up  and  suspended  for  the  space 
of  eight  days ;  and  during  the  said  eight  days  respectively,  then 
and  there,  unlawfully  and  maliciously  published  and  exposed  the 
said  gallows,  with  the  said  effigy  and  figure,  so  intended  to  re- 
present the  said  C.  D.  as  aforesaid,  thereto  suspended,  to  the 
sight  and  view  of  all  the  citizens  of  said  Commonwealth,  pass- 
ing and  repassing  in  the  public  road  and  common  highway  as 
aforesaid  ;  to  the  great  damage,  injury,  and  disgrace  of  him  the 
said  C.  D.,  and  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 


'  See  a  similar  precedent  in  3  Cliitt.  90S,  909,  which  refers  to  a  similar  pre- 
cedent in  Hand.  Prac.  225. 


]  5S  LIBEL. 

214.  For  publishing  an  ex  parte  Statement  of  an  Examination 
before  a  Mairistrute,  fur  an  Offence  with  which  the  Defendant 
was  charged} 

The  jiii-nrs  he,  upon  tlieir  oath  present,  that  hefore  the  print- 
ins;  aii'l"pul)lishin:>;of  the  dcfnmatory  and  malicious  libel  herein  af- 
terwards nienlioned,  to  wit,  on  &ic.,  one  A.  B.  preferred  to  and 
hefore  C.  D.,  Esquire,  then  and  still  one  of  the  justices  of  the 
peace  within  and  for  the   county  of  duly  and   legally  au- 

thorized, appointed,  and  qualified  to  discharge   and   perforin   the 
duties  of  said  office,  a  certain  complaint  and  charge,  in  due  form 
of  law,  against  one  E.  F.,  for  that  he  the  said  E.  F.,  on 
at  with  force  a»id  arms,  in  and  upon  the  body  of  her  the 

said  A.  B  did  make  an  assault,  with  intent  her  the  said  A.  B.  to 
ravish  and  carnally  know,  by  force,  and  against  her  will ;  against 
the  peace  he,  and  the  forui  of  the  statute  iLc.~  And  the  jurors 
aforesaid,  upon  iheir  oath  aforesaid,  do  further  present,  that 
G.  IL,  of  &c.,  printer,  well  knowing  the  premises,  but  devising 
and  intending  to  traduce  and  defame  the  said  E.  F.,  and  to  in- 
jure and  jirejudice  him  in  the  minds  of  the  good  people  of  said 
Commonwealth,  and  to  cause  it  to  be  believed,  that  he  was  guilty 
of  the  said  felonious  assault,  and  thereby  to  prevent  the  due  ad- 
ministration of  justice,  and  to  deprive  the  said  E.  F.  of  the  bene- 
fit of  an  impartial  trial  for  and  concerning  the  matter  of  the  said 
charge,  on  at  he,  did  wilfully  and   maliciously  print  and 

publish,  and  did  cause  and  procure  to  be  printed  and  published, 
a  certain  scandalous,  malicious,  and  defamatory  libel,  of  and 
concerning  the  said  charge  and  the  matter  thereof,  and  of  and 
concerning  the  said  E.  F. ;  which  said  scandalous  and  malicious 
libel  is  of  the  following  purport  and  effect,  that  is  to  say, 
[Acre  insert  the  publication  correctly  and  with  proper  innendoes  ;] 
to  the  great  damage  &c.  of  him  the  said  E.  F.,  and  against  the 
peace  and  dignity  of  tlie  Commonwealth  aforesaid. 

215.  For  a  Libel  on  a  Person  who  was  dead? 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &;c., 
yeoman,  being  a  person  of  a  revengeful  and   malicious  disposi- 

1  Altered  from  a  precedent  in  3  Cliitt.  911.  See  2  Camp.  Rep.  563,  where 
this  was  held  libellous. 

*  The  process,  whether  pending  hefore  a  magistrate,  or  any  other  court  or 
tribunal,  ought  to  be  correctly  set  forth. 

»  See  a  similar  precedent,  3  Chitt.  914,  note  (/c),  where  it  is  said  that  the 
averment  of  the  intent  to  vilify  the  family,  is  essential  to  the  vaUdity  of  the  in- 
dictment.    See  also  4  T.  R.  126. 


LIBEL. 


i5d 


tlon,  and  maliciously  intending  to  injure,  defanfie,  vilify,  and  dis- 
grace the  memory,  character,  and  reputation  of  one  C.  D.,  then 
deceased,  and  to  bring  the  family,  relations,  and  descendants 
of  the  said  C.  D.  into  disgrace,  contempt,  and  infamy,  and  to 
cause  it  to  be  believed,  that  the  said  C.  D.,  in  his  life  tjmc, 
was  a  person  of  a  vicious,  immoral,  and  depraved  mind  and 
disposition,  and  destitute  of  filial  duty  and  affection,  and  that 
the  said  C.  D.  led  an   immoral  and  profligate  life,  on  at 

&ic.,  in  said  county,  unlawfully  and  maliciously  did  print  and 
publish,  and  did  cause  and  procure  to  be  printed  and  published, 
in  a  certain  newspaper  called  "  The  JVorld,^''  a  certain  false, 
scandalous,  and  malicious  libel,  of  and  concerning  die  said  C.  D., 
which  said  false,  scandalous,  and  malicious  libel  is  of  the  pinport 
and  effect  following,  to  wit,  [//ere  set  fjrth  the  Ubd,  ivith  proper 
inucnclocs,']  to  the  great  scandal  and  disgrace  of  the  memory, 
reputation,  and  character  of  the  said  C.  D.,  and  against  the 
peace  and  dignity  of  the  Commonwealih  aforesaid. 

21G.  For  publishing  an  obscene  Print} 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
being  an  evil  disposed  person,  and  devising  and  intending  the 
morals  as  well  of  the  youth  as  of  other  citizens  of  this  Com- 
monwealth to  corrupt  and  debauch,  on  the  day  ot 
at  in  the  county  aforesaid,  unlawfully,  wantonly,  and  ma- 
liciously did  utter  and  publish  to  one  C.  D.,  a  citizen  of  said 
Commonweahh,  a  certain  lewd,  scandalous,  and  obscene  print 
on  paper,  representing  a  man  in  an  indecent  and  obscene  pos- 
ture with  a  woman,  that  is  to  say,  in  the  act  and  posture  of  car- 
nal copulation  with  each  other,  which  said  lewd,  scandalous, 
and  obscene  print  was  contained  and  published  in  a  certain 
printed  book,  entitled  "  Memoirs  of  a  Woman  of  Pleasure,"  lo 
the  manifest  corruption  and  subversion  of  the  morals  and  man- 
ners of  the  youth  of  this  Commonwealth  and  of  tlie  citizens 
thereof,  to  the  evil  and  pernicious  example  of  all  others  in  like 
case  to  offend,  and  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 

'  This  is  the  case  of  Commonwealth  vs.  Holmes,  17  Mass.  R.  336.  This 
indictment  did  not  allege  what  the  obscene  posture  was,  and  it  was  decided  ia 
that  case  not  to  be  necessary  ;  perhaps,  however,  strict  technical  accuiacy  may 
require  it. 

See  another  precedent  in  2  Stark.  C.  P.  G36,  against  a  bookseller,  for  uttering 
and  selling  a  pamphlet  containing  an  obscene  print. 


160  LIBEL. 

217.  For  publishing  a  seditions  Libel} 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  See, 
beins;  a  malicious,  seditious,  and  ill-disposed  person,  and  greatly 
disaffected  to  the  government  of  the  United  States  [or  the  gov- 
ernment of  the  state  of  one  of  the  United  Slates  of  America, 
as  the  case  may  ie,]  and  to  the  administration  thereof,  and  ma- 
liciously and  seditiously  devising  and  intending  to  stir  Jip  and  ex- 
cite discontents  and  seditions  among  the  citizens  of  the  said 
United  States,  [or  the  said  state  of  as  the  case  may  be,'] 
and  to  alienate  and  withdraw  the  fidelity  and  al'egiance  of  the 
said  citizens  from  the  said  government  and  the  administration 
thereof,  on  at  &c.,  maliciously  and  seditiously  did  write 
and  publish,  and  cause  and  procure  to  be  written  and  published, 
a  certain  false,  malicious,  and  seditious  libel  of  and  concerning 
the  said  government  and  the  administration  thereof,  which  said 
libel  is  of  the  following  purport  and  effect,  that  is  to  say,  [here 
insert  the  libel,  vcrbatitn,  with  proper  inucndoes,]  in  contempt  of 
the  government  aforesaid,  its  constitution  and  laws,  and  the  ad- 
ministration of  the  same ;  to  the  evil  and  pernicious  example  of 
all  others  in  like  case  to  offend,  and  against  the  peace  and  dig- 
nity of  the  Commonwealth  aforesaid.^ 

218.  For  writhw  a  libellous  Letter  to  the  Prosecutor? 

O 

The  jurors  &.c.,  upon  their  oath  present,  that  A.  B.,  of  &;c., 
maliciously  and  unlawfully  intending  one   C.  D.   to  injure,  op- 
press, and  vilify,  and  bring  into  contempt  and  ridicule,  on 
at  in   said  county,  unlawfully   and   maliciously   did  write 

and  cause  to  be  written  a  certain  false,  malicious,  and  defamato- 
tory  libel  of  and  concerning  the  said  C.  D.,  which  said  false, 
malicious,  and  defamatory  libel  is  of  the  following  purport  and 
effect,  that  is  to  say,  \Jiere  insert  the  libel,  loith  proper  inuen- 
does,'\  which  said  false,  malicious,  and  defamatory  libel  he  the 
said  A.  B.  afterwards,  to  wit,   on  the  same  day  and  year  afore- 

1  Cro.  C.  A.  73.  This  was  the  indictment  against  Dr.  John  Home,  for  a  libel 
upon  the  British  government,  for  their  proceedings  against  the  American  colo- 
nies, at  the  commencement  of  the  American  revolution.  See  also  2  Stark. 
C.  P.  625. 

^  If  the  libel  is  printed,  state  it  as  follows  ;  "  did  maliciously  and  seditiously 
print  and  publish,  and  cause  and  procure  to  be  printed  and  published,  in  a  cer- 
tain newspaper,  called  and  entitled  [/lere  insert  the  title  of  the  neivspaper,"]  a 
certain  false,  malicious,  and  seditious  libel,"  [as  stated  in  the  /oregoing  prece- 
dent.} 

3  Cro.  C.  A.  70,  71. 


LIBKL.  161 

said,  at  aforesaid,  in  the  county  aforesaid,  maliciously  and 

unlawfully  did  send  and  deliver,  and  cause  to  be  sent  and  de- 
livered to  the  said  C.  D.,  in  the  form  of  a  letter,  directed  to  the 
said  C.  D.,  by  the  name  of  [here  insert  the  svperscription  to  the 
letter;]  to  the  great  injury,  damage,  and  scandal  of  the  said 
C.  D.,  and  against  the  j)eace  and  dignity  of  the  Conimonwcalih 
aforesaid.^ 

219.   For  a  blasphemous  Libel.^ 
The  jurors  &i.c.,  upon  their  oath  present,  that  A.  B.,  of 
disregarding  the  laws  and   religion  of  liiis  Coinnionweallh,   and 
profanely  devising   and    intending  to   bring   the  Holy  Scriptures 
and  the  Christian  religion  into  disbelief  and  contempt  among  the 
people  of  this  Comnionweahh,  on  at  unlawfully  and 

wickedly  did  compose,  print,  and  pn[)lish,  and  did  cause  and  pro- 
cure to  be  composed,  printed,  and  publishetl,  a  certain  scanda- 
lous, impious,  blasphemous,  and  profane  libel,  of  anrl  concerning 
the  Holy  Scriptures  and  of  and  concerning  the  Christian  re- 
ligion ;  in  one  part  of  which  said  libel,  among  other  things,  there 
were  and  are  contained  certain  scandalous,  impious,  and  blasphe- 
mous matters  and  things  of  and  concerning  the  Holy  Scriptures 
and  the  Christian  religiot),  according  to  the  pm-port  and  effect 
following,  to  wit,  [here,  set  out  the  libellous  passage ;]  to  the 
great  scandal  and  reproach  of  the  Christian  religion,  and  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

220.  For  a  Libel  upon  a  Senator  of  the  United  States.^ 

The  jmors  &:c.,  upon  their  oath  present,  thnt  T.  L.,  of 
being  a  person  regardless  of  the  integrity  and  patriotism,  which 
the  ciiizens  of  this  Commonwealih  and  of  the  United  States, 
when  elected  to  and  entrusted  with  offices  of  honor,  trust,  and 
responsibility,  in  the  adniinistration  of  the  government  of  this 
Commonwealth  and  of  the  United  States,  ought  to  possess  and 
sustain,  and  unlawfully  and  maliciously  devising  and  intending  to 


'  A  second  count  may  be  added,  leaving  out  what  relates  to  the  sending  of  the 
libel,  and  alleging,  instead  thereof,  "  did  write  and  publish,  and  cause  to  be 
written  and  published,"   &c. 

*  This  precedent  is  taken  from  Archb.  C.  P.  294. 

3  This  is  the  substance  of  the  indictment  against  T.  L.  Esq.,  for  a  libel  upon 
D.  W.  It  was  taken  from  an  English  precedent,  which  was  remarkable  for 
its  prolix  prefatory  averments,  all  cf  which  are  here  left  out,  excepting  those 
which  h.id  a  direct  and  true  application  to  the  public  character  and  official  situ- 
ation of  the  prosecutor. 

21 


162  LOTTERY. 

traduce,  vilify,  and  brinj;  into  nontPmpt  and  detestation  one 
I).  W.,  of  he,  who  was,  on  the  day  liereaftcr  mentioned,  nnd 
still  is,  one  of  the  senators  in  the  Congress  of  the  United  States 
of  Atneiica  for  the  state  of  Massachuselts,  duly  and  constitution- 
ally elected  and  appointed  to  that  office,  and  also  urdawfully  and 
maliciously  intending  to  insinuate  and  cause  it  to  be  believed, 
that  the  said  D.  W.  and  divers  other  distinguished  and  [);Uiiotic 
citizens  of  this  Commonweal'h  had  been  engaged  in  an  atrocious 
and  treasonable  plot  to  dissolve  the  union  of  the  sisid  United 
States,  then  and  still  consliiuiing  the  government  of  the  s;.id 
United  Slates  under  the  present  consiitiition  thereof,  and  furlber 
maliciously  intending  to  make  it  to  be  believed,  that  J.  Q.  A., 
then  the  president  of  the  United  States,  had  denounced  the  said 
D.  VV.  as  a  traitor  to  his  country,  on  at  unlawfully, 

deliberately,  and  maliciously  did  compose,  print,  and  publish,  and 
did  cause  and  procure  to  be  compostd,  printed,  and  published, 
in  a  certain  newspaper  railed  the  "Jackson  Republican,"  of  and 
concerning  him  the  said  D.  VV.,  an  unlawful  and  malicious  libel, 
according  to  the  purport  and  effect,  and  in  substance  as  follows, 
that  is  to  say,  \^here  insert  the  libellous  publicittion,  with  all  neces- 
sary inuendoes  and  averments  ;\  to  the  great  injury,  scandal,  and 
disgrace  of  tlie  said  D.  W.,  and  against  the  peace  and  dignity  of 
the  Commonuealth  afuresaid. 


LOTTERY. 


Forms  of  Indictment  upon  the  Statutes  prohibiting  the 
Sale  &c.  ov  Lottery  Tickets. 

221.  For  selling  a  Lottery  Ticket :    On  the  Statute  of  Massa- 
chusetts 0/  1825,  c.  184,  §  1. 

The  jurors  &c.,   upon  their  oath   present,  that  A.  B.,  of  &z,c., 
on  at  did  unlawfully  offer  for  sale,   and  did   unlaw- 

fully sell  to  one  C.  D.   a  lottery  ticket  in  a  certain  lottery  not 
authorized  by  the  laws  of  this  Commonwealth,  called  the 
lottery  ;  which  said  lottery  ticket  was  then  and  there  taken  and 
kept  by  the  said  C.  D.,   so  that  the  jurors  aforesaid  cannot  set 
forth  the  tenor  or  substance  thereof;  against  the  peace  of  said 


LOTTERY.  163 

Commonwealth,  and  contrary  to  the  form  of  the  statute  in  sucli 
case  made  and  provided.^ 

222.  For  exhibiting  a  Sign  or  other  emhlemniicnl  Representa- 
tion of  a  Lottery,  Hfc. :  On  the  IStatute  of  Massachuselts  of 
Jrt28,  c.  134,  §  1.2 

The  jurors  he,   upon  their  oath  present,  that  A.  B.,  of  Sec, 
on  at  did  unlawfully  exhibit  a  sign,  symbol,  and 

emblematical  representation  of  a  lottery,  and  of  the  drawing 
thereof,  called  the  lottery,  which  said  lottery  was  not   au- 

thorized by  the  laws  of  this  Connuonwealth,  by  [here  describe 
the  manner  in  which  the  sign,  symbol,  4'C.  was  exhibited,']  and  did 
thereby  indicate  where  lottery  tickets  in  said  lottery  might  be 
purchased  and  received,  and  did  thereby  invite  and  intice  the 
good  citizens  of  this  Commonvvealtli  unlawfully  to  purchase  and 
receive  the  said  tickets  in  the  aforesaid  lottery  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  tlie  form  of  the  statute 
in  such  case  made  and  provided. 

*  The  same  form  may  be  adopted  for  all  the  other  breaches  of  the  statute, 
using  the  identical  words  of  the  statute  in  which  each  ofTence  is  described,  as 
follows ;  "  did  advertise,  ami  cause  to  be  advertised  for  sale,"  certain  lottery 
tickets  in  a  certain  lottery,  called  the  lottery,  which  lottery   was   not  au- 

thorized by  the  laws  of  this  Coinmouwealth  ;  and  the  same  form  is  to  be  adopt- 
ed for  advertising  '•  parts  of  tickets." 

Also,  for  drawing  a  lottery,  as  follows,  "  did  then  and  there  draw,  and  aid 
and  assist  in  drawing  a  certain  loUciy,  called  &c.,  not  authorized,"  &c. 

Also,  for  being  "  concerned  in  the  management  and  conducting  of  said  lotte- 
ry within  this  Commjtyi wealth." 

The  penalties  in  this  section  of  the  statute  may  be  recovered  by  indictment 
or  information  in  the  Supreme  Judicial  Court,  by  the  attorney  or  solicitor  gene- 
ral ;  and  by  the  county  attorney  in  the  Court  of  Common  Pleas,  or  Municipal 
Court  in  the  city  of  Boston. 

*  By  this  section  of  the  statute,  its  penalties  may  be  recovered  for  the  use 
of  the  Commonwealth,  if  prosecuted  for  by  the  attorney  or  solicitoi  general. 
They  may  also  be  recovered  by  any  other  person  ;  in  which  latter  case,  half 
the  penalty  is  given  to  the  pio<ccutor,  and  the  other  half  to  the  Common- 
wealth. But  no  mode  of  prosecution,  whether  by  indictment,  information,  or 
action  qui  tarn,  is  directed  in  the  statute. 


164  MAINTENANCE.       MALICIOUS  MISCHIEF. 


MAINTENANCE. 

223.  For  Maintenance  of  an  Action  of  Debt} 

The  jurors  &c.,  npon  their  oath  present,  that  A.  B.,  of  Sic, 
on  at  in  said   county,   did   unjustly  and    unlawl'ully 

maintain  and  uphold  a  certain  smt  which  was  then  depending  in 
the  [^lierc  state  the  Court  in  which  the  action  loas  pending,^  be- 
tween C.  D.,  plainlifT,  anfl  E.  F.,  defendant,  in  a  certain  |)lea  of 
debt,  on  behalf  of  the  said  C.  D.,  against  the  said  E.  F.,  to  the 
manifest  hindrance  and  disturbance  of  justice  ;  to  the  great  dam- 
age of  hiu)  the  snid  K.  F.,  and  against  the  peace  and  dignity 
of  the  Commonwealth  aforesaid. 

224.  For  Maintenance  of  an  Action  of  Ejectment.^ 

The  jurors   Sic,   U|)on  their  oath  present,  that  A.  B.,  of  &ic., 
on  and  for  the  space  of  one  year  next  following,  at 

in  said  county,  unlawfully  and  unjustly  did  maintain  a  certain 
action  then  pending  in  the  [here  insert  the  name  of  the  Court,'] 
between  one  C.  D.,  plaintiff,  and  one  E.  F.,  defendant,  in  a  plea 
of  ejectment  of  a  certain  tract  or  parcel  of  land  &.C.,  [Afre  de- 
scribe the  demanded  premises  as  in  the  ivrit;  ]  on  the  behalf  of  the 
said  C.  D.,  and  against  the  said  E.  F.,  to  the  manifest  hindrance 
and  disturbance  of  justice  ;  to  the  great  damage  of  the  said 
C.  D.,  and  against  the  peace  &j.c. 


MALICIOUS  MISCHIEF. 

225.  For  Maliciously  Burning  a   Q^nantity  of  Boards.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &;c., 
yeoman,   on  at  in  the   county   aforesaid,  a  certain 

quantity  of  boards,  containing  one  thousand  feet,  of  the  value  of 

1  2  Chitt.  234  ;  Burn's  Justice,  Maintenance  ;  2  Stark.  678. 

2  1  IVem.  178.  This  precedent  was  drawn  by  Saunders.  It  differs  from 
the  last  preceding  precedent  only  in  the  description  of  the  court  and  the  name 
of  the  suit. 

5  Statute  of  Massachusetts  of  1804,  c  131,  §  4. 


MARRIAGE  UNLAWFULLY  SOLEMNIZED.  165 

ten  dollars,  of  the  goods,  chattels,  and  property  of  one  C.  D. 
there  lying  and  being,  did  wilfully  and  maliciously  set  fire  to, 
burn  and  consume  ;  against  the  peace  of  said  Coiumonweahh, 
and  conirary  to  the  form  ol  the  statute  in  such  case  made  and 
provided.^ 

22G.  For  inlfuUy  and  maliciously  maiming  and  disfiguring  a 

Ho7se.~ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
on  at  in  the  county  aforesaid,  a  certain  gelding  of 

the  value  of  one  himdred  dollars,  of  the  goods,  chattels,  and 
property  of  one  C.  D.,  did  then  and  there  wilfully  and  malicious- 
ly maim  and  disfigure,  by  willully  and  maliciously  cutting  off  the 
ears  of  said  gelding,  whereby  he  was  greatly  iujined  and  ren- 
dered of  little  value  ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  rnade  and 
provided.^ 

Manslaughter.  —  See  "  ^lurder." 


MARRIAGE  UNLAWFULLY  SOLEMNIZED. 

227.  For  solemnizing  a  Marriage,  tvithout  lawful  Authority^ 

The  jurors  &tc.,  upon  their  oath  present,  that  A.  B.,  of  &:c.,on 
at  in  the  county  aforesaid,   did    unlawfully,  know- 

ingly,  and   wilfully  join  in  marriage,   and    solemnize  matrimony 
between  C.  D.  and  one  F.  E.,  then  a  single  woman  ;  he  the  said 

'  The  same  form  is  applicable  to,  and  may  be  adopted  as  to  burning  all  the 
other  articles  of  properly  mentioned  in  the  statute. 

*  Statute  of  Massachusetts  of  1804,  c.  131,  §  4.  See  2  East,  P.  C,  c.  22, 
§  18,  19,  for  an  exposition  of  the  Enolish  statute. 

*  This  form  of  a  precedent  may  be  adopted  for  all  the  variety  of  cases  mention- 
ed in  this  branch  of  the  statute.  An  indictment  at  common  law  may  be  maintained 
for  the  wilful  destruction  of  other  animals  not  mentioned  in  the  statute,  such  as 
hogs,  poultry,  &c.  Prosecutions  at  common  law  for  these  offences  have  been 
sustained  in  the  Supreme  Judicial  Court  of  Massachusetts,  tried  at  nisi  prius^ 
but  not  reported.     See  the  case  of  Commonwealth  v.  Lear.h,  1  Mass.  R.  59. 

*  Statute  of  Massachusetts  of  1786,  c.  3,  §  6. 


1G6  MANSLAUGHTER. 

A.  B.  not  he'uvx  anihniizcfl  and  empowered  to  solemnize  mar- 
riages by  virtue  of  llu'  act  of  the  said  Comnionwealth,  entitled, 
"  An  act  for  the  ordeily  s()le:nniz;ition  of  marriages,"  nor  being 
aniboiized  ibtrelo  in  any  other  mnnier,  or  by  any  other  legal 
power  and  authority  uba'ever ;  nL^ainst  the  peace  of  said  Com- 
monwealth, and  contrary  lo  tlie  form  of  the  statute  in  such  case 
made  and  j)rovidutl.^ 


MANSLAUGHTER. 

228.  Against  the  Driver  of  a  Cart  for  driving  over  Deceased? 

The  jurors  Uc,  upon   their  oath  present,  that  A.  B.,  of  &tc., 
on  [loith  force  and  arms^fAi  in  the  county  afore- 

said, in  the  public  highway  there,  in  and  upon  one  C.  D., 
in  the  peace  of  the  said  Coinmonwealih  then  and_^there  being, 
feloniously  and  wilfully  did  make  an  assault,  and  a  certain  cart 
of  the  value  of  ten  dollars,  then  and  there  drawn  by  two  horses, 
which  he  the  said  A.  B.  was  then  and  there  driving  in  and  along 
the  highway  aforesaid,  in,  upon,  and  against  the  said  C.  D.  fe- 
loniously and  wilfully  did  force  and  drive  ;  and  him  the  said 
C.  D.  did  thereby,  then  and  there,  throw  to,  and  upon  the 
ground,  and  did  then  and  there  feloniously  and  wilfully  force  and 
drive  one  of  the  wheels  of  the  said  cart  against,  upon,  and  over 
the  head  of  him  the  said  C.  D.  then  lying  upon  the  ground,  and 
thereby,  did  then  and  there  give  to  the  said  C.  D.  in  and  upon 
the  head  of  him  the  said  C.  D.  one  mortal  fracture  and  contusion, 
of  the  breadth  of  four  inches,  and  of  the  depth  of  four  inches,  of 
which  said  mortal  fracture  and  contusion,  the  said  C.  D.  then 
and  there  instantly  died;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  A.  B  ,  him  the  said  C.  D., 
then   and   there  in  manner  and  form  aforesaid,  feloniously  and 

*  See  an  able  and  learned  exposition  of  the  statute  on  which  this  precedent  is 
founded,  and  of  the  nature  and  objects  of  the  marriage  contract,  by  Chief  Justice 
Parsons,  in  the  case  of  The  Inhabitants  of  Milford  v.  The  Inhabitants  of 
Worcester,  7  Mass.  R.  48. 

2  Statute  of  Massachusetts,  1804,  c.  123,  and  1818,  c.  124. 

'  Not  necessary. 


MATH EM.  167 


wilfully  did  kill  and  slay  ;  against  the  peace  of  said  Common- 

vvoaltl),  and  contrary  to  the  form  of  the  several  statutes  in  such 
case  made  and  provided.^ 


MAYHE^I. 

229.  For  Mayhem  by  slitting  the  JVose.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of&cc., 
on  with  force  and  arms,  at  in  the  county  aforesaid, 

contriving  and  intending  one  C,  D.  to  maim  and  disfigure,  in  and 
upon  the  said  C.  D.  in  the  peace  of  said  Commonwealth  then 
and  there  heing,  with  set  purpose  and  aforethought  malice,  and 
with  intention  him  the  said  C.  D.  to  maim  anti  disfigure,  un- 
lawfully and  maliciously  ^  did  make  an  assault  ;  and  that  he  the 
said  A.  B.  with  a  certain  iron  hill,  (of  the  value  of  five  cents,)  * 
which  he  the  said  A.  B.  in  his  right  hand  then  and  there  had 
and  held,  the  nose  of  him  the  said  C.  D.  with  set  purpose  and 
aforethought  malice,  then  and  there  unlawfidly  and  maliciously 
did  slit,  with  intention  the  said  C.  D.  in  so  doing,  in  manner 
aforesaid,  to  maim  and  disfigure  ;  against  the  peace  of  said  Com- 
monweahh,  and  contrary  to  the  form  of  the  statute  in  sucli  case 
made  and  provided. 

*  See  similar  precedents,  3  Chitt.  783;  2  Stark.  38 J.  Manslaughter  may  be 
described  in  the  indictment  exactly  like  murder,  omitting  ibe  worils  murder  dnd 
malice  aforethought,  3  Cliitt.  783,  note  (u.)  i  4  BI.  Com.  190  -  l£i3.  This 
note  in  Chitty  is  undoubtedly  correct,  but  it  is  inconsistent  with  the  precedent 
ID  2  Stark.  362,  363. 

*  Statute  of  Massachusetts  of  1804,  c.  123,  §  4.  See  a  precedent  in  3  Chitt 
787,  on  the  Coventry  Act,  22  £c  23  Car.  2,  c.  1,  said  to  be  taken  from  Cro. 
C.  C.  264  ;  but  in  the  6th  ediiion  of  Cro.  C.  C.  this  precedent  is  on  page  430. 

'  The  won]  feloniously  is  used  in  the  English  precedents,  but  is  changed  for 
maliciously  in  this,  upon  the  autliority  of  Commonwealth  v.  A'ewall  et  al.,  7 
Mass.  R.  245.  This  form  will  answer  for  all  the  other  si>ccies  of  Mayhem  men- 
tioned in  the  section  of  the  statute  on  which  this  precedent  is  drawn.  All  per- 
sons present  aiding  and  abetiin  may  be  charged  as  principals.  M  not  present, 
but  accessories  bffore  the  (iict,  they  may  be  charged  as  such.  See  ante,  p.  47, 
Accessory,  Mayhem,  and  the  authorities  there  cited,  viz.,  3  Chitt.  787;  Com- 
monwealth  v.  JS'ewall  et  al.  7  Mass.  R.  245. 

*  Not  necessary.     See  note  (4)  to  precedent  233,  post. 


i68  MISPRISION  OF  FELONr. 


MISPRISION  OF  FELONY. 

230.  Indictment  for  M'sprlsion  or  Concealment  of  Felony} 

The  jurors  &:c.,  upon  their  oalh  present,  tliat  A.  B.,  [here 
set  out  the  offence  Inj  the  original  offender,  in  the  vsual  form, 
whether  it  be  murder,  larceny,  or  any  other  felony,  and  then  pro- 
ceed as  follows:  ]  and  the  jurors  aloresaitl,  upon  their  oath  alore- 
said,  do  further  present,  that  C.  D.,  late  of  fcc,  being  a  person 
of  evil  and  unprincipled  mind  and  disposition,  and  well  knowing 
the  premises,  and  also  well  knowing;  the  name  and  person  and 
usual  place  of  resort  of  the  said  A.  B.,  but  devising  and  intend- 
ing, as  iiuirh  as  in  him  lav,  to  hinder  and  obstruct  the  doe  course 
of  law  and  jusiice,  and  to  cause  the  said  A.  B.  lo  jio  and  escape 
for  the  said  ofTence,  so  by  him  committed  as  aforesaid,  afterwards, 
to  wit,  on  at  aforesaid,  unlawfully,  maliciously,  and 

wilfully  did  conceal  and  keep  secret,  and  nes^lcct  to  discover  the 
said  felony,  so  comunlied  by  the  said  A.  B.  as  aforesaid,  and 
the  name,  person,  and  usual  [ilace  of  resort  of  A.  B.  did  utterly 
refrain,  forbear,  and  neglect  to  discover  and  make  known  j 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

231.  Another  Form  for  Misprision  of  Felony.^ 

The  jurors  he  ,  upon  their  oath  present,  that  Richard  Crown- 
inshield,  junior,  late  of  Danvers,  in  the  county  of  Essex,  ma- 
chinist, on  the  sixth  day  of  April  now  last  past,  with  force  and 
arms,  at  Salem,  in  the  county  aforesaid,  in  and  upon  one  Joseph 
White,  feloniously,  wilfully,  and  of  his  malice  aforeihoiighr,  did 
make  an  as:>ault  ;  and  that  he  the  said  Richard  Crowninshield, 
junior,  with  a  certain  deadly  weapon  called  a  bludgeon,  which 
he  the  said  R.  C.  jr.,  in  his  right  hand  then  and  there  had  and 
held,  the  aforesaid  Joseph  White,  in  and  upon  the  left  temple  of 
him  the  said  Joseph  White,  then  and  there,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  strike,  penetrate,  and  wound  ; 
giving  to  the  said  Joseph  White,  then  and  there  with  the  blud- 
geon aforesaid,  in  and  upon  the  left  temple  of  him  the  said  Jo- 

^  This  precedent  h  from  2  Chitt.  232,  and  is  said  in  a  note  there  to  have 
been  settled  by  an  able  lawyer.  It  is  the  only  precedent  for  a  misprision  of 
felony  that  I  have  been  able  to  find  in  any  English  book  of  precedents  of  in- 
dictments. 

-  Thii?  form  is  from  the  original  indictment  against  J.  J.  Knapp,  junior,  in- 
tended to  be  used  in  case  he  was  not  convicted  as  an  accessory  before  the  fact 
to  J.  F.  Knapp.     He  was  convicted  and  executed  as  such  accessory. 


MISPRISION  OF  FELONY.  169 

sepli  White,  one  mortal  wound,  of  the  breadili  of  three  inches, 
and  of  the  length  and  depth  of  three  inches  ;  of  wiiich  snid  mor- 
tal uonnd  the  said  JosP|)h  White  then  and  there  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  R.  C.  jr.  the  aforesaid  Joseph  White,  in  manner 
and  form  aforesaid,  feloniously,  willully,  and  of  his  malice  nfore- 
thonjiijht,  did  kill  and  murder ;  aii;ainst  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

And  ihe  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  Joseph  Jenkins  Knapp,  junior,  of  Salem,  &tc.,  well 
knowing  tlie  premises,  and  also  well  knowing  the  person,  name, 
anil  usual  place  of  resort  of  the  said  R.  C.  jr.,  but  devising 
and  intending,  as  much  as  in  him  lay,  to  hinder  and  ohsiruct  the 
i\i\e  course  of  law  and  justice,  and  to  cause  the  said  R.  C  jr., 
to  go  and  escape  unpunished  for  the  felony  and  murder  so  by 
him  as  aforesaid  done  and  committed,  aferwards,  to  wit,  on  the 
seventh  day  of  April,  in  the  year  aforesaid,  at  Salem,  in  the 
county  of  Essex  aforesaid,  unlawfidly,  wilfully,  and  maliciously 
did  conceal  and  keep  secret,  and  neglect  to  discover  the  said  fel- 
ony and  murder,  so  as  aforesaid  done  and  committed  by  the  said 
R.  C.  jr.  ;  and  the  name,  person,  and  usual  place  of  resort  of 
the  said  R.  C.  jr.,  unlawfully,  wilfully,  and  maliciously  did  re- 
frain and  forbear  to  make  known  and  disclose ;  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

232.  For  a  Misprision  of  an  intended  Felony. 

The  jurors  for  said  Commonwealth,  upon  their  oath  pre- 
sent, that  one  Richard  Crowninshield,  junior,  late  of  Danvers,  in 
the  county  of  Essex  aforesaid,  machinist,  now  deceased,  and  one 
John  Francis  Knapp  of  Saieu),  in  the  comity  aforesaid,  mariner, 
and  one  Joseph  Jenkins  Knapp,  junior,  of  Wenham.  in  the  county 
aforesaid,  mariner,^  on  the  sixth  day  of  April,  in  the  year  of  our 
Lord  one  thousand  eight  himdred  and  thirty,  at  Salem  afore- 
said, in  the  county  aforesaid,  wickedly,  injuriously,  and  mali- 
ciously did  conspire,  combine,  agree,  intend,  and  determine,^ 
within  a  few  days  from  the  said  second  day  of  April  in  the  year 
aforesaid,  in  and  upon  Joseph  White,  in  the  peace  of  the  said 

'  The  words  "  not  having  the  fear  of  God  before  his  eyes,"  &c.  are  omitted, 
beinf?  unnecessary  and  superfluous. 

'  Hawk   b.  2,  c.  29,  §  2S.     The  concealment  of  an  intended  felony  is  mis- 
pi  ision  of  felony :  and  he  who  conceals  a  felony,  which  he  knows  is  intended  to 
be  committed,  is  guilty  of  a  misprision. 
22 


I7U  MUKDEU. 


Comnionwealtli  ilien  and  there  being,  feloniously,  wilfully,  and 
of  their  nialire  aloielhought  to  make  an  assault,  and  Imn  the  said 
Joseph  White  t'.ieii  and  there  feloniously,  wilfully,  and  of  their 
malice  aforethought  to  kill  and  murder. 

And  the  jurors  aforesaid,  upon  their  oalh  aforesaid,  do  lurther 
present,  that  George  Crowninshield,  q\'  Danvers  aforesaid,  in  the 
county  aforesaid,  machinist,  being  a  person  of  a  wicked  and  evil 
mind   and  disj)osiiiou,  and  well  knowing  the  jjremises,  and  also 
well  knowing  the  names,  persons,  and  usual  places  of  abode  and 
resort  of  the  said  Rich.ard  Crowninshield,  junior,  John  Francis 
Knapp,  and  Josej)h  Jenkins  Knap[),  junior,  but  devising  and  in- 
lendiiU,   as   much  as  in  him  lay,  that  the  said  Richard  Crown- 
inshield, junior,  John   Francis  Knapp,   and  the  said  Joseph  Jen- 
kins Ivnnpp,   junior,  tlie  intended  felony  and  murder  aforesaid,  in 
manner  and  form  aforesaid,  should  carry  into  full  effect,  without 
being  prevented  and  brought  to  justice  therefor,  on  the  second 
day  of  April   in   the   year  aforesaid,  and  from  the  same  second 
day  of  April  in  the  year  aforesaid,  to  the  seventh  day  of  April  in 
the  year  aforesaid,  at  Danvers  aforesaid,  in  the  county  aforesaid, 
unlawfully,  wickedly,  wilfully,  maliciously,    and  contemptuously, 
did  conceal,  keep  secret,  and  neglect  to  discover  the  felony  and 
murder,   so   agreed,  intended,   and    determined  to  be  done  and 
committed    in    manner  aforesaid;  and   the  names,  persons,  and 
usual  places  of  resort  of  the  said  Richard  Crowninshield,  junior, 
John  Francis  Knapp,  and  of  the   said   Joseph   Jenkins  Knapp, 
junior,    did,   during  all   the  time   aforesaid,   utterly   refrain  and 
foriiear  to  disclose  and  make  known  ;  in  contempt  of  the  laws  of 
the  land,  in  evil  example  to  others   in  ]ike  case  to  offend,  and 
against  the  peace  and   dignity  of  the  Commonwealth  aforesaid.^ 


MURDER. 

233.  Fo7'  Murder,  by  shooting  with  a  Fistol.^ 

The  jurors  &c.,  upon  their  oaih  present,  that  A.  B.,   of  &c., 
yeoman,  (not  having  the  fear  of  God  before  his  eyes,  but  being 

*  This  indictmeat  was  drawn  by  the  present  Attorney  General  of  Massachu- 
setts. 
2  3  CWtt.  752. 


MURDER.  171 

moved  and  seduced  by  the  instigation  of  the  Devil,)  ^  on  iv'itk 

force  and  arms,  at^  in  the  county  aforesaid,  in  and  upon  the 

body  of  one  C.  D.,  in  the  peace  of  said  Commonwealth  then  and 
there  bting^  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  make  an  assault ;  and  that  the  said  A.  B.,  a  certain  pistol, 
of  the  value  of  two  dollars,^  ihen  and  there  charged  with  gun- 
powder and  one  leaden  bullet,  which  said  pistol,  he  the  said 
A.  B.  in  his  riiilit  hand  then  and  there  had  and  held,  then  an(J  there 
feloniously,  wilfully,  and  of  liis  malice  aforediought,  did  discharge 
and  shoot  oft",  to,  against,  and  ujion  the  said  C.  D. ;  and  that  the 
said  A.  B.  with  die  leaden  bullet  aforesaid,  out  of  the  pistol 
aforesaid,  iIkmi  and  there,  by  force  of  the  guu-powder  aforesaid, 
by  the  said  A.  B  discharged  and  shot  oft'  as  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  afortlhought,  did 
strike,  penetrate,  and  woimd  the  said  C.  D.,  in  and  upon  the  right 
side  of  the  belly  of  him  the  said  C.  D.,  giving  to  him  the  said 
C.  D.  then  and  there,  with  the  leaden  bullet  aforesaid,  so  as 
aforesaid  discharged  and  shot  out  of  the  pistol  aforesaid,  by  the 
said  A.  B.,  in  and  upon  the  ri[;ht  side  of  the  belly  of  him  the  said 
C.  D.,  one  mortal  wound  of  the  depdi  of  four  inch(!s,  and  ol  the 
breadth  of  half  an  inch  ;  of  which  said  mortal  wound,  he  the  said 
C.  D.  then  and  there  instantly  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the 
said  C.  D.,  in  the  m  inner  and  by  the  means  aforesaid,  lelonious- 
ly,  wilfully,  and  of  his  malice  aloreihought,  did  kill  and  murder; 


'  Not  necessary.     See  note  (3)  to  the  next  precedent. 

*  The  venue  must  be  laid  where  the  death  occurred.  Where  the  wound  is 
given  in  one  county  and  the  death  happens  in  another,  an  indictment  thereof 
way  be  found  in  the  latter.  See  the  case  of  Commonwealth  v  Parker  et  at. 
2  Pick.  550,  where  this  question  was  discussed  and  decided. 

^  This  allegation,  though  usual,  is  not  necessaiy.  2  Chitt.  733,  734 ;  2  Hale, 
186;  Hawk.  b.  2,  c.  25,  §  73  ;  1  Kuss.  on  Crimes,  677.  The  terms  with  force 
and  arms  are  not  necessary,  being  so  fully  implied  in  the  description  of  the 
violence  employed.  Hawk.  b.  2,  c.  23,  §  85  ;  3  Chitt.  751,  note  (A).  2  Hale, 
187. 

*  This  allegation  as  to  the  value  of  the  instrument  is  not  necessary.  1  East, 
P.  C.  c.  5,  §  8 ;  Foster,  265,  266  ;  who  states,  that  a  deodand  is  a  forfeiture 
originally  founded  in  an  age  of  extreme  ignorance.  The  omission  to  state 
the  value  of  the  deodand,  will  not  vitiate  the  indictment  as  to  the  offence. 
Cro.  C.  C.  441,  442,  (6th  Ed.)  note  (c)  ;  1  H.  H.  419 ;  1  H.  H.  c.  32. 


172  MURDER. 

against  the  peace  of  said  Commonweallli,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 

234.   For  Murder  by  stabbing  with  a  Knife. '^ 

The  jurors  Sec,  upon  their  oath  present,  that  A.  B.,  of  &-c., 
laborer,'^  on  the  day  of  at  in  the  county  afore- 

said, in  and  upon  one  CD.,  in  the  peace  of  said  Communivenlth 
then  and  there  being,"^  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  make  an  assault ;  and  that  the  said  A.  B.,  with 
a  certain  knife  (of  tiie  value  of  ten  cents,)^  (which  he  the 
said  A.  B.  in  his  ri-lit  hand  then  and  there  had  and  held,)^  the 
said  C.  D.  in  ancf  upon  the  left  side  of  tlie  body  between  the 
ribs  of  him  the  said  C.  D.,  then  and  there  feloniously,  wilfully, 
and  of  bis  malice  aforethought,  did  strike  and  thrust,  giving  to  "the 
said  C.  D.  then  and  there,\vith  the  knife  aforesaid,  in  and  upon 


J  If  th(!  party  did  not  immediately  die  of  the  mortal  wound,  tlie  indictment 
must  conclude  as  follows,  viz.,  set  forth  the  charge  precisely  as  in  the  forc- 
goin<r  precedent,  until  you  come  to  the  words  "  of  which  mortal  wound," 
and  then  conclude  thus  :  "  of  which  mortal  wound  the  said  C.  D.,  on  and  from 
the  said  day  of  until  the  day  of  at  B.  aforesaid,  in  the 

county  aforesaid,  did  suffer  and  languish,  and  lansuishins?  did  live  ;  on  which  said 
day  of  at  H.  aforesaid,  in  the  county  aforesaid,  he  the  said  C.  D.  of 

the  mortal  wound  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  A.  13.  him  the  said  C.  D.,  in  the  manner  and 
by  the  means  aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder;  against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided." 

There  are  several  precedents  in  Chitty,  Starkie,  and  others,  where  one  is 
charged  as  principal,  and  others  as  being  present  aiding  and  abetting.  This  can 
never  be  necessary,  as  all  that  are  present  aiding  and  assisting  are  equally 
principals  with  him  who  gave  the  mortal  stroke,  and  may  be  charged  as  such. 
1  East,  P.  C.  c.  5,  §  121  ;  1  Russ.  628,  (Davis's  Ed.)  are  full  to  the  point. 

2  See  similar  precedents,  3  Chitt.  757  ;  Cro.  C.  C.  440,  (6th  Ed.)  ;  2  Stark. 
381. 

3  The  allegation  "  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  Devil,"  is  usually  introduced  in  this 
place  in  the  English  precedents,  but  it  is  not  necessary.  6  East,  472  -  474 ; 
Burn  J.  Indictment,  19;  3  Chitt.  C.  L.  750,  note  (h).  It  is  obsolete,  and  is 
not  retained  in  any  precedent  in  this  collection. 

•4  This  allegation  is  unnecessary,  and  may  be  injudicious.  3  Chitt.  751,  note 
(m)  ;  2  Hale,  186  ;  2  Stark.  363,  note  (A;).     See  pags  172. 

*  This  allegation  is  not  necessary.  See  note  (4)  in  the  next  preceding  pre- 
cedent. 

6  This  allegation  is  usual ;  but  East  doubts  the  necessity  of  it.  1  East  P.  C. 
c.  5,  §  108. 


MURDER,  173 

the  aforesaid  left  side  of  the  body  between  the  ribs  of  him  the 
said  C.  D.  one  mortal  wound,  of  the  breaddi  of  three  inches, 
and  of  the  depth  of  six  inches  ;  of  which  said  mortal  wound  he 
the  said  C.  D.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  iheir  oaih  aforesaid,  do  say,  that  the  said  A.  B. 
him  the  said  C.  D.,  in  manner  and  forn)  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder ; 
as,ainst  the  peace  of  said  Commonweahh,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

235.  For  Murder,  by  cutth-g  the  Throat} 

The  jurors  Sec,  upon  their  oath  |)re?ent,  that  A.  B.,  of  &c.,  on 
at  in  the  county  aforesaid,  with  force  and  arms,  in  and 

upon  one  C.  D.  feloniously,  wilfully,  and  of  his  malice  afore- 
thou2;ht,  did  make  an  assault ;  and  that  die  said  A.  B.,  with  a  cer- 
tain knife,  made  of  iron  and  steel,  which  he  the  said  A.  B.  in  his 
riiiht  hand  then  and  there  had  and  lield,  the  throat  of  him  the  said 
C.  D.  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  strike 
and  cut ;  and  that  the  said  A.  B.,  with  the  knife  aforesaid,  by 
the  striking  and  cutting  aforesaid,  did  then  and  there  give  to  him 
the  said  C.  D.,  in  and  upon  the  said  throat  of  him  the  said  C.  D., 
one  mortal  wound,  of  the  length  of  three  inches,  and  of  die  depth 
of  two  inches;  of  which  said  mortal  wound  the  said  C.  D.,  hom 
the  said  day  of  to  the  day  of  afore- 

said, at  aforesaid,  in  the  county  aforesaid,  did  sufTer  and 

languish,   and  languishing  did  live  ;  on  which  said  day  of 

aforesaid,  in   the  year  aforesaid,   at  aforesaid,  in 

the  county  aforesaid,  he  the  said  C.  D.,  of  the  said  mortal  wound, 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aloresaid,  do 
say,  diat  the  said  A.  B.  him  the  said  C.  D.,  in  manner  and  form 
aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  kill  and  murder ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

236.  For  Murder,  by  throwing  a  Knife? 

The  jurors  &:c.,  upon  their  oath  present,   that  A.  B.,  of  B.,  in 
the  county  of  S.,  gentleman,  on  the  day  of  row  last 

past,  with  force  and  arms,  at  B.  aforesaid,  in  the  c.ounty  afore- 
said, in  and  upon  one  C.  D.  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault,  and  that   he   the  said 

»  See  3  Chitt.  757.  *  From  3  Chitt.  758. 


174  MURDER. 

A.  B.,  with  a  certiiiii  large  knife,  made  of  iron  and  steeV  which 
he  the  said  A.  H.  in  his  rii:ht  hand  then  atid  there  had  and 
held,  at  and  a<;ainst  him  the  said  C.  D.  then  and  there  felonious- 
ly, wilfully,  and  of  his  malice  aforethought,  did  cast  and  throw; 
and  him  the  said  C.  1).,  with  the  knife  aforesaid,  so  cast  and 
thrown  as  aforesaid,  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  strike  and  stah,  and  that  the  said 
A.  J3.  with  the  knife  aforesaid,  so  cast  and  thrown  as  aforesaid, 
in  and  upon  the  left  side  of  the  hody  <.f  him  the  said  C.  D., 
then  and  there  feloniously,  wilfidly,  and  of  liis  malice  afore- 
thought, did  strike  and  stah,  and  that  he  the  said  A.  B.,  with 
the  knife  aforesaid,  so  cast  and  thrown  as  aforesaid,  did  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  give 
to  the  said  C.  D.,  in  and  upon  the  left  side  of  the  ho(ly  of  him 
the  said  C.  D.,  one -mortal  wound,  of  the  breadth  of  one  inch, 
and  of  the  depth  of  three  inches ;  of  which  said  mortal  wound, 
he  the  said  (J.  D.  then  and  there  instantly  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  he  the 
said  A.  B.  him  the  said  C.  I).,  in  manner  and  form  aforesaid, 
then  and  there  feloniously,  willully,  and  of  liis  malice  afore- 
thought, did  kill  and  murder ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

237.  For  Murder,  by  casting  a  Stone.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  with  lorce 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  E  F.,  feloniously,  wilfully,  and  of  liis  malice  aforethought, 
did  make  an  assault,  and  that  he  the  said  C.  D.  a  certain  stone, 
of  no  value,^  which  he  the  said  C.  D.  in  his  right  hand  then  and 
there  had  and  held,  in  and  upon  the  right  side  of  the  head,  near 
the  right  temple  of  him  the  said  E.  F.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  cast  and  throw,  and 
that  the  said  C.  D.,  with  the  stone  aforesaid,  so  as  aforesaid  cast 
and  thrown,  the  aforesaid  E  F.,  in  and  upon  the  right  side  of 
the  head,  near  the  right  temple  of  him  the  said  E.  F.,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
strike,  penetrate,  and  wound,  giving  to  the  said  E.  F.,  by  the 
casting  and  throwing  of  the   stone   aforesaid,   in   and  upon  the 

'  See  note  (4)  to  precedent  233,  as  to  deodands. 

2  Cro.  C.  C.  438,  439,  (6th  Ed.) ;  3  Chitt.  758  ;  2  Stark.  380. 

'  See  note  (4)  to  precedent  233. 


MURDER.  175 

right  side  of  tiie  head,  near  the  right  temple  of  him  the  said 
E.  F.,  one  mortal  wound,  of  the  length  of  one  inch,  and  of  the 
depth  of  one  incli  ;  of  which  said  mortal  wound  he  the  said 
E.  F.,  from  the  said  day  of  in  the  year  aforesaid, 

to  the  day  of  in  the  year  aforesaid,  at  B.  aforesaid, 

in  the  county  aforesaid,  did  languish,  and  languishing  did  live  ; 
on  which  said  day  of  in   the  year   aforesaid,  at  B. 

aforesaid,  in  the  county  aforesaid,  the  said  E.  F  ,  ol  the  nsortal 
wound  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon  their 
call)  aforesaid,  do  say,  that  the  said  C.  D.  him  the  said  E.  F.,  in 
manner  and  form  aforesaid,  feloniously,  willully,  and  of  his  malice 
aforethought,  did  kill  and  murder ;  against  the  peace  of  said 
Commonweahh,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

238.  For  Murder,  hy  stri/cing  with  a  Poker} 

The  jurors  Sec,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  lahorer,  on  the  day  of  now  last  past,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  E.  F.,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  make  an  assault ;  and  that  he  the  said  C.  D.  then  and  there 
with  a  certain  iron  poker,  which  he  the  said  C.  D.  in  hoih  his 
hands  then  and  lluue  had  and  held,  the  said  E.  F.,  in  and  upon 
the  hack  part  of  the  head  of  him  the  said  E,  F  ,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  strike, 
giving  unto  him  the  said  E.  F.  then  and  there,  with  the  said  iron 
poker,  hy  the  stroke  aforesaid,  in  manner  aforesaid,  in  and  upon 
the  back  part  of  the  head  of  him  the  said  E.  F.,  one  mortal 
wound,  ol  the  length  of  three  inches,  and  of  the  depth  of  one 
inch  ;  of  which  said  mortal  wound,  he  the  said  E.  F.,  on  the 
said  day  of  at  B.  aforesaid,  in  the  county  aforesaid, 

did  languish,  and   languishing   did  live  ;  on  which  same 
day  of  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 

he  the  said  E.  F.,  of  the  said  mortal  wound,  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.  him  the  said  E.  F.,  in  manner  and  form  aforesaid, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill  and 
murder  ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided.^ 

1  3  Chitt.  761  ;  Cio.  C.  A.  330. 

*  If  there  are  divers  mortal  wounds  given,  and  they  are  mentioned  or  stated 
in  the  indictment,  they  must  ail  be  speciallj'  described,  and  the  dimensions  of 
all  of  them  specided,  and  then  it  must  be  alleged,  that  the  deceased  died  of 


176  MURDER. 

239.  For  Murder,  by  heatins^  ivith  Fists,  and  kicking  on  the 

Ground.^ 

The  jmors  Sec,  upon  their  oath   present,   that  C  D.,  of  said 
B.,  in  the  county  aforesaid,  laborer,  on  the  (hiy  of 

now  last  past,  wiili  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  in  and  upon  one  E.  F.,.  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault,  and  that 
iJie  said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  beat,  and  kick  the  said  E.  F. 
uith  his  hands  and  feet,  in  and  upon  the  head,  breast,  back, 
belly,  sides,  and  other  parts  of  the  body  of  him  the  said  E.  F., 
and  did  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  cast  and  throw  the  said  E.  F.  down,  unto  and  upon 
the  ground,  with  great  force  and  violence  there,  giving  to  the 
said  E.  F.  then  and  there,  as  well  by  the  beating,  striking,  and 
kicking  of  him  the  said  E.  F  ,  in  manner  and  form  afor(;said,  as 
by  the  casting  and  throwing  of  him  the  said  E.  F.  down  as 
aforesaid,  several  mortal  strokes,  wounds,  and  bruises,  in  and 
upon  the  head,  breast,  back,  belly,  sides,  and  other  parts  of  thd 
body  of  him  the  said  E,  F.,  to  wit,  one  mortal  wound  on  the 
left  side  of  the  belly  of'  him  the  said  E.  F.,  of  the  length  of  five 
Indies,  and  of  the  depth  of  three  inches,  [here  state  the  other 
wounds  in  the  some  tea?/,]  of  which  said  last  mentioned  mortal 
strokes,   wounds,   and    bruises,  he  the  said  E.  F.,  from  the  said 

day  of  aforesai'i,  to  the  day  of  in  the 

year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish,  and   languishing   did   live  ;    on  which  said  day  of 

in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  afore- 
said, he  the  said  E.  F.,  of  the  mortal  strokes,  wounds,  and 
bruises  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  afor  said,  do  say,  that  the  said  C.  D.  him  the  said  E.  F., 
in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  kill  and  murder  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

them  all.  For  fhis,  see  3  Chitt.  C.  L.  761,  note  (d).  But  if  one  mortal  wound 
is  properly  described,  and  it  is  alleged  that  the  deceased  died  of  it,  it  is  pre- 
sumed to  be  sufi5cient. 

*  Taken  from  3  Chitt.  C.  L.  762,  note  (g),  where  the  necessity  of  describing 
the  particular  wounds  is  stated.  See  other  precedents,  Cro.  C.  A.  306,  and 
2  Stark.  375,  where  no  particular  description  of  any  wound  is  given. 


MURDER.  177 

240.  For  Murder,  by  choking  and  strangling.^ 

The  jurors  k.c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  hiborer,  on  the  day  of  now  last  past,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  up- 
on one  E,  F.  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  make  an  assault;  and  that  the  said  CD.,  with 
both  his  hands  about  die  neck  and  throat  of  her  the  said  E.  P., 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  fix  and  fasten  ;  and  that  he  the  said  C  D.,  with 
both  his  hanfls  so  as  aforesaid  fixed  and  fastened  about  the  neck 
and  throat  of  her  the  said  E.  F.,  her  the  said  E.  F.  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
choke  and  strangle ;  of  which  said  choking  and  strangling,  she 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  ju- 
rors aforesaid,  upon  dieir  oalh  aforesaid,  do  say,  thaf  the  said 
C.  D.  her  the  said  E.  F.  then  and  there,  in  manner  and  form 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder  ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

241.  For  Murder,  by  riding  over  a  Person  with  a  Horse.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  up- 
on one  E.  F.  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  make  an  assault;  and  that  the  said  C.  D.  then 
and  there  riding  upon  a  horse,  the  said  horse  in  and  upon 
the  said  E.  F.  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  ride  and  force,  and  him  the  said  E.  F., 
with  the  horse  aforesaid,  then  and  there,  by  such  riding  and 
forcing  as  aforesaid,  did  throw  to  the  ground  ;  by  means  where- 
of the  said  horse,  with  his  hinder  fe'et,  him  the  said  E.  F., 
so  thrown  to  and  upon  the  ground  as  aforesaid,  in  and  upon 
the  back  part  of  the  head  of  him  the  said  E.  F.,  did  then  and 
there  strike  and  kick,  thereby  then  and  there  giving  to  him  the 
said  E.  F.,  in  and  upon  the  back  part  of  the  head  of  him  the 
said  E.  F.,  one  mortal  fracture  and  contusion,  of  the  breadth 
of  two  inches,  and  of  the  depth  of  one  inch  ;    of  which  said 


'  3  Chitt.  C.  L.  764 ;  2  Stark.  373  ;  several  counts,  for  striking  with  a  stick, 
choking,  squeezing,  &c. 

*  3  Chitt.  765  ;  2  Stark.  380. 

23 


178  MURDER. 

mortal  fracture  and  contusion,  the  said  E.  F.  then  and  there  in- 
stantly died.  And  so  the  jurors  aforesaiil,  upon  their  oath  afore- 
said, do  say,  that  the  said  C.  D.  him  the  said  E.  F.,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thougiit,  did  kill  and  murder ;  against  the  peace  of  said  Com- 
monvveahh,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

242.  For  Murder,  by  sfrangling  loiih  a  Handkerchief} 
The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  with  force 

and  arms,  at  13.  aforesaid,  in  the  county  of  S.  aforesaid,  in  and 
upon  one  E.  F.  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  C.  D.,  with  a 
handkercliief,  about  the  neck  of  him  the  said  E.  F.,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
put,  fasten,  and  bind  ;  and  that  the  said  C.  D.,  with  the  said 
handkerchief,  about  the  neck  of  him  the  said  E.  F.,  then  as 
aforesaid  put,  fastened,  and  bound,  him  the  said  E.  F.  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethougi.t,  did 
choke  and  strangle ;  of  which  choking  and  strangling  the  said 
E.  F.  then  and  there  instantly  died.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.,  in 
manner  and  form  aforesaid,  him  the  said  E.  F.  feloniously,  wil- 
fully, and  of  bis  malice  aforethought,  did  kill  and  murder;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

243.  For  the  Murder  of  a  Bastard  Child,  hy  folding  it  in  a 

Cloth.^ 
The  jurors  he,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  single  woman,  on  the  day  of  now  last   past,  at  B. 

aforesaid,  in  the  county  aforesaid,  being  pregnant  with  a  certain 
female  ^  child,  afterwards,  to  wit,  on  the  same  day  of 

in  the  year  aforesaid,  at  B.  aforesaid,  the  said  female  child  alone"* 
and  secretly  from  her  body  did  bring  forth  alive,  which  said  female 
child,  so  born  alive,   was,   by  the  laws  of  this  Commonwealth,  a 

1  3  Chitt.  766,  note  (q)  ;  2  Stark.  379,  note  (a),  where  it  is  said  to  be  taken 
from  4  St.  Tr.  484,  and  to  be  the  case  of  Rex  vs.  Harrison,  for  the  murder  of 
Dr.  Clenche. 

*  3  Chitt.  767. 

'  The  sex  is  material,  and  must  be  alleged.    See  2  Stark.  383,  note  (f.) 

*  The  words  of  the  statute  of  Massachusetts,  of  February,  1785,  are  "  shall 
willingly  be  delivered  in  secret  by  herself." 


MURDER.  179 

bastard  ;  and  that  the  said  C.  D.  afterwards,  to  wit,  on  the  same 
day  of  in  the  year  aforesaid,  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said 
female  bnstard  child,  feloniously,  wilfully,  and  of  her  malice 
aforethought  did  make  an  assault ;  and  that  the  said  C.  D.,  with 
both  her  hands,  the  said  female  bastard  child,  in  a  certain  linen 
cloth,  feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
put,  place.  Ibid,  and  wrap  up ;  by  means  of  which  said  putting, 
placing,  folding,  and  wrapping  up  of  the  said  female  bastard 
child,  in  the  said  linen  cloth,  by  her  the  said  C.  D.  as  aforesaid,  the 
said  female  bastard  child  was  then  and  there  choked,  suffocat- 
ed, and  smothered ;  of  which  said  choking,  suffocation,  and 
smothering,  the  said  female  bastard  child  then  and  there  instantly 
died.  And  so  die  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say,  that  the  said  C.  D.  the  said  female  bastard  child,  in  manner 
and  form  aforesaid,  feloniously,  willully,  and  of  her  malice  afore- 
thought, did  kill  and  murder  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

244.  For  Murder^  by  throwing  a   Child  into  a  Privy} 

The  jurors  &.c.,  upon  their  oaUi  present,  that  C.  D.,  late  of 
said  B.,  single  woman,  on  the  day  of  now  last  past, 

being  pregnant  with  a  female'-  child,  afterwards,  to  wit,  on  the 
same  day  of  in  the  year  aforesaid,  at  B.  aforesaid, 

the  said  female  child,  alone^  and  in  secret  from  her  body  did 
bring  forth  alive,  which  said  female  child,  so  born  alive,  was,  by 
the  laws  of  this  Commonwealth,  a  bastard  ;  and  that  the  said 
C.  D.,  afterwards,  to  wit,  on  the  same  day  of  in  the 

year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  the  said  female  bastard  child,  feloniously, 
wilfully,  and  of  her  malice  aforethought,  did  make  an  assault; 
and  that  the  said  C.  D.,  with  both  her  hands,  the  said  female 
bastard  child,  into  a  certain  privy  there  situate,  wherein  was  a 
great  quantity  of  human  excrements  and  other  fdlh,  then  and 
there  feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
cast  and  throw  ;  by  reason  of  which  said  casting  and  throwing  of 
the  said  female  bastard  child  into  the  said  privy,  by  her  the  said 
C.  D.,  in  manner  as  aforesaid,  the  said   female  bastard  child,  in 

»  3  Chitt.  7G7. 

*  The  sex  is  material  to  be  alleged.     See  note  (3)  to  the  next  preceding 
precedent. 
'  See  note  (4)  to  the  next  preceding  precedent. 


180  MURDER. 

the  said  privy,  with  the  excrements  and  filth  aforesaid,  was 
then  and  there  choked  and  suffocated  ;  of  which  said  choking 
and  suffocation  the  said  female  bastard  child  then  and  there  in- 
stantly died.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  C.  D.  the  said  female  bastard  child, 
in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  kill  and  murder ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

245.  For  killing  a  Bastard  Child,  by  Strangling.^ 

The  jurors  Sec,  upon  their  oath  present,  that  C.  D.,  of  &;c., 
single  woman,  on   the  day  of  now  last  past,  being 

pregnant  with  a  male  child,  the  same  day  and  year,  at  B.  aforesaid, 
did  willingly  bring  forth  the  said  child  alive,  of  the  body  of  her  the 
said  C.  D.,  in  secret  by  herself,  which  said  male  child,  so  being 
born  alive,  was,  by  the  laws  of  this  Commonwealth,  a  bastard  ; 
and  that  the  said  C.  D.,  afterwards,  to  wit,  on  the  same 
day  of  in  the  year  aforesaid,  with  force  and  arms,  at  B. 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  male 
child,  feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
make  an  assault;  and  that  she  the  said  C.  D.,  with  both  her 
hands  about  the  neck  of  him  the  said  child  then  and  there  fixed, 
him  the  said  child  dien  and  there  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  choke  and  strangle ;  of  which  said 
choking  and  strangling,  the  said  child  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say,  that  the  said  C.  D.  the  aforesaid  male  child,  in  manner  and 
form  aforesaid,  feloniously,  w-ilfully,  and  of  her  malice  afore- 
thought, did  kill  and  murder  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

1  3  Chitt.  768  ;  Cro.  C.  C.  (7th  Ed.)  288.  See  2  Stark.  383,  note  (h),  where 
it  is  said  that  the  allegation  "  was  delivered  alone,"  does  not  appear  to  be  ne- 
cessary.    See  note  (4)  to  precedent  243,  ante. 

In  the  statute  of  Massachusetts,  passed  February  26, 1785,  made  to  prevent 
the  destroying  and  murdering  of  bastard  cliildren,  the  words  are,  •'  in  secret  by 
herself." 


MURDER.  181 


246.  For  the  Murder  of  a   Child,  by  hiding  and  starving  it.^ 

The  jurors  Sic,  upon  their  oath  present,  that  C.  D.,  of  said  B., 
single  woman,  on  the  day  of  now  last  past,  being 

pregnant  with  a  male  child,  the  same  day  and  year  aforesaid,  at  B. 
aforesaid,  did  willingly  bring  forth  the  said  child  alive,  of  the  body 
of  her  the  saidC.  D.,  in  secret  by  herself;  which  said  male  child, 
so  being  born  alive,  w'as,  by  the  laws  of  this  Commonwealth,  a 
bastard  ;  and  that  she  the  said  C.  D.,  on  the  day  of 

in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
with  force  and  arms,  in  and  upon  the  said  male  child,  feloniously, 
wilfully,  and  of  her  malice  aforethought,  did  make  an  assault ;  and 
that  the  said  C.  D.  the  said  male  child,  so  being  alive,  did  then 
and  there  take  and  carry  to  a  certain  shed  there  situate,  and  the 
same  child,  so  being  alive,  did  then  and  there  in  the  said  shed, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  hide,  secrete, 
and  conceal ;  and  the  same  child,  so  being  alive,  and  so  being 
hidden,  secreted,  and  concealed,  she  the  said  C.  D.  did  then 
and  there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
leave  and  desert ;  and  to  nourish,  sustain,  and  provide  for  the  said 
male  child,  so  being  alive,  she  the  said  C.  D.,  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  did  wholly  neglect  and 
refuse;  by  reason  of  which  said  hiding,  secreting,  and  concealing 
the  same  child,  in  manner  and  form  aforesaid,  by  the  said  C.  D., 
and  of  the  said  refusal  and  neglect  of  the  said  C.  D.  to  nourish, 
sustain,  and  provide  for  the  said  male  child,  the  said  child  then 
and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  C.  D.  the  said  male  child, 
in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  kill  and  murder ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

247.  For  Murder,  by  Droivning.^ 

The  jurors  &c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  on  the  day  of  now  last  past,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  E.  F.,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  make  an  assault ;  and  that  the  said  C.  D.  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  take  the 

1  3  Chitt.  768,  769. 

«  3  Chitt,  770 ;  2  Stark.  373. 


182  MURDER. 

said  E.  F.  into  both  the  hands  of  him  the  said  C.  D.,  and  did 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, cast,  throw,  and  push  the  said  E.  F.  into  a  certain  i)ond 
there  situate,  wherein  there  was  a  great  quantity  of  water ;  by 
means  of  which  said  casting,  throwing,  and  pushing  of  die  said 
E.  F.  into  the  pond  aforesaid,  by  the  said  C.  D.,  in  form  afore- 
said, he  the  said  E.  F.,  in  the  pond  aforesaid,  willi  the  water 
aforesaid,  was  then  and  there  choked,  suffocated,  and  drowned  ; 
of  which  said  choaking,  suffocation,  and  drowning,  lie  the  said 
E.  F.  then  and  there  instantly  died.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.,  in 
manner  and  form  aforesaid,  iiiui  the  said  E.  F.  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  kill  and  murder  ;  against 
the  peace  of  said  Commonweahli,  and  contrary  to  the  form  of 
the  statute  in  sucii  case  made  and  provided. 

248.  For  Murder,  by  secretly  conveying  Poison  to  the  De- 
ceased} 

The  jurors  &c.,  upon  their  oath  present,  diat  C.  D.,  of  said 
B.,  yeoman,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
contriving  and  intending  one  E.  F.,  with  poison,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  to  kill  and  murder,  on 
the  day  of  now  last  past,  with  force  and  arms,  at 

B.  aforesaid,  in  the  county  aforesaid,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  privately  and  secretly  convey  into  and 
leave  a  great  quantity  of  white  arsenic,  being  a  deadly  poison,  in 
the  lodging  room  of  him  the  said  E.  F.,  in  the  dwelling-house  of 
him  the  said  E.  F.  there  situate  ;  and  that  the  said  C.  D.,  contriv- 
ing and  intending  as  aforesaid,  afterwards,  to  wit,  on  the  day 
and  year  aforesaid,  the  same  white  arsenic,  with  a  certain  quantity 
of  beer,  in  the  same  house  then  and  there  being,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  put,  mix, 
and  mingle,  he  the  said  C.  D.  then  and  there  well  knowing  the 
said  white  arsenic  to  be  a  deadly  poison  ;  and  also  that  the  said 
beer,  with  which  the  said  C.  D.  did  so  mix  and  mingle  the  said 
arsenic,  was  then  and  there  prepared  for  the  use  of  the  said 
E.  F.  ;  and  that  the  said  E.  F.  afterwards,  to  wit,  on  the  same 
day  and  year  aforesaid,  at  B.  aforesaid,  did  take,  drink,  and 
swallow   down  a  great   quantity   of  the  said  beer,  with   which 

1  3  Chitt.  774  ;  see  note  (d) ;  2  Stark.  364 ;  Cro.  C.  A.  293.  This  precedent 
appears  to  be  defective  in  not  sufficiently  stating  the  scienter  of  the  prisoner, 
that  the  beer  and  poison  was  prepared  for  the  deceased.  It  is  therefore  added  by 
the  author. 


MURDER.  183 

the  said  white  arsenic  was  mixed  and  mingled  by  the  said 
C.  D.  as  aforesaid,  he  the  said  E.  F.  not  knowing  that  there 
was  any  white  arsenic,  or  other  poisonous  ingredient,  mixed 
or  mingled  with  the  said  beer  as  aforesaid  ;  by  means  whereof 
he  the  said  E.  F.  then  and  there  became  sick  and  distempered 
in  his  body,  and  the  said  E.  F.,  of  the  poison  aforesaid,  so  by 
him  taken,  drank,  and  swallowed  down  as  aforesaid,  and  of  the 
sickness  occasioned  thereby,  from  the  said  day  of 

in  the  year  aforesaid,  until  the  twenty-eighth  day  of  said  month, 
in  the  same  year,  at  B.  aforesaid,  in  the  county  aforesaid,  did 
languish,  and  languishing  did  live  ;  on  which  said  twenty-eighth 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 

aforesaid,  he  the  said  E.  F.,  of  the  poison  aforesaid,  and  of  the 
sickness  and  distemper  occasioned  thereby,  died.  And  so  the 
jurors  aforesaid,  upon  their  oatii  aforesaid,  do  say,  that  he  the 
said  C.  D.,  in  manner  and  form  aforesaid,  him  the  said  E.  F., 
feloniously,  wilfully,  and  of  his  malice  alorethought,  did  poison, 
kill,  and  murder ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

249.  For  Murder^  by  placing  Poison  so  as  to  he  mistaken  for 

Medicine.^ 

The  jurors  &:c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  laborer,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
devising  and  intending  one  E.  F.  to  poison,  kill,  and  murder,  on 
the  day  of  now  last  past,  with  force    and  arms,  at 

B.  aforesaid,  in  the  county  aforesaid,  a  certain  quantity  of  arsenic, 
to  wit,  two  drachms  of  arsenic,  being  a  deadly  poison,  felonious- 
ly, wilfully,  and  of  his  malice  aforethought,  did  put,  infuse,  mix, 
and  mingle  in  and  together,  with  water,  he  the  said  C.  D.  then 
and  there  well  knowing  the  said  arsenic  to  be  a  deadly  poison  ; 
and  that  the  said  C.  D.  the  said  arsenic,  so  as  aforesaid  put,  in- 
fused in,  and  mixed  and  mingled  in  and  together  with  water,  into 
a  certain  glass  phial,  did  put  and  pour ;  and  the  said  glass  phial, 
with  the  said  arsenic  put,  infused  in,  and  mixed  and  mingled  in 
and  together  with  water  as  aforesaid  contained  therein,  then  and 
there,  to  wit,  on  the  same  day  of  in  the  year  afore- 

said, with  force  and  arms,  at  B.  aforesaid,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  in  the  lodging  room  of  the  said 
E.  F.  did  put  and  place,  in  the  place  and  stead  of  d  certain  sal- 


1  3  Chitt.  774 ,  Cro.  C.  A.  297-299  ;  2  Stark.  369. 


184  mjRDER. 

utary  medicine  then  lately  before  prescribed  and  made  up  for  the 
said  E.  F.,  and  lo  be  taken  by  him  the  said  E.  P.,  he  the  said 
C.  D.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforediought,  intending  that  the  said  E.  F.  should  drink  and 
swallow  down  into  his  body  the  said  arsenic,  put,  infused, 
mixed,  and  mingled  in  and  together  with  water  as  aforesaid,  con- 
tained in  ti)e  said  glass  phial,  by  mistaking  the  same  as  and  for 
the  said  salutary  medicine,  so  prescribed  and  made  up  for  the 
said  E.  F.,  and  to  be  by  him  the  said  E.  F.  taken  as  aforesaid. 
And  the  jurors  aforesaid,  upon  thir  oath  aforesaid,  do  further 
present,  that  the  said  E.  F.,  not  knowing  the  said  arsenic,  put, 
infused  in,  and  mixed  together  with  water  as  aforesaid,  contained 
in  the  said  glass  phial,  so  put  and  [)laced  by  the  said  C.  D., 
in  the  lodging  room  of  the  said  E.  F.,  in  the  place  anti  stead  of 
the  said  salutary  medicine,  then  lately  before  prescribed  and 
made  up  for  the  said  E.  F.,  to  be  taken  by  him  the  said  E.  F., 
in  manner  aforesaid,  to  be  a  deadly  poison,  but  believing  the 
same  to  be  the  true  and  real  medicine,  then  lately  before  pre- 
scribed and  made  up  for,  and  to  be  taken  by  him  the  said  E.  F., 
afterwards,  to  wit,  on   the  same  day  of  in  the  year 

aforesaid,  at  B.  aforesaid,  the  said  arsenic,  so  as  aforesaid  put, 
infused  in,  and  mixed  together  with  water,  by  the  said  C.  D.,  as 
aforesaid,  contained  in  the  said  glass  phial,  so  put  and  placed  by 
the  said  C.  D.,  in  the  lodging  room  of  him  the  said  E.  F.,  in  the 
place  and  stead  of  the  said  medicine,  then  lately  before  pre- 
scribed and  made  up  for  the  said  E.  F.,  he  the  said  E.  F.  did 
take,  drink,  and  swallow  down  into  his  body  ;  by  means  of  which 
said  taking,  drinking,  and  swallowing  down  into  the  body  of  him 
the  said  E.  F.  of  the  said  arsenic,  so  as  aforesaid  put,  infused 
in,  and  mixed  together  with  water  by  the  said  C.  D.  as  afore- 
said, he  the  said  E.  F.  then  and  there  became  sick  and  dis- 
tempered in  his  body  ;  of  which  sickness  and  distemper  of  body, 
occasioned  by  the  said  taking,  drinking,  and  swallowing  down 
into  the  body  of  him  the  said  E.  F.,  and  of  the  said  arsenic,  so 
as  aforesaid  put,  infused  in,  and  mixed  together  with  water  by 
the  said  C.  D.  as  aforesaid,  he  the  said  E.  F.  on  the  said 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 

aforesaid,  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  C.  D.  him  the  said  E.  F.,  in 
manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  his  mal- 
ice aforethought,  did  poison,  kill,  and  murder ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


MURDER.  185 


250.  For  Murder  by  sending  Poison.^ 

The  jurors  Stc,  upon  iheir  oath  present,  that  A.  B.,  late  of 
he,  of  his  malice   aforethought,  contriving  and   intending  one 
C.   D.,   with  poison,   feloniously  to  kill  and  murder,  on 
with  force  and  arms,  at  a  large  quantity  of  white  arsenic, 

being  a  deadly  poison,  with  a  certain  quantity  of  wine,  felonious- 
ly, wilfully,  and  of  his  malice  aforethought,  did  mix  and  mingle  ; 
he  the  said  A.  B.  then  and  there  well  knowing  the  said  white 
arsenic  to  be  a  deadly  poison ;  and  that  the  said  A.  B.  after- 
wards, to  wit,  on  the  day  of  at  aforesaid,  the 
poison  aforesaid,  so  as  aforesaid  mixed  and  mingled  wiUithe  wine 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  send  to  her  the  said  C.  D.  to  take,  drink,  and  swallow  down  ; 
and  diat  the  said  C.  D.,  not  knowing  that  the  poison  aforesaid 
in  the  wine  aforesaid  to  have  been  mixed  and  mingled  as  afore- 
said, afterwards,  to  wit,  on  at  aforesaid,  the  said 
poison,  so  as  aforesaid  mixed  and  mingled,  by  the  persuasion 
and  procurement  of  the  said  A.  B.,  did  take,  drink,  and  swallow 
down ;  and  thereupon  the  said  C.  D.,  by  the  poison  aforesaid, 
so  mixed  and  mingled  as  aforesaid  by  the  said  A.  B.,  and  so 
taken,  drank,  and  swallowed  down  as  aforesaid,  became  then 
and  there  sick  and  distempered  in  her  body,  and  the  said  C.  D. 
of  the  poison  aforesaid,  and  of  the  sickness  and  distemper  occa- 
sioned thereby,  from  the  said  day  of  until  the 
day  of  at  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live  ;  on  which  said  day  of 
she  the  said  C.  D.,  at  aforesaid,  in  the  county 
aforesaid,  of  the  poison  aforesaid,  and  of  the  sickness  and  dis- 
temper thereby  occasioned  as  aforesaid,  died.  And  so  the  ju- 
rors aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
A.  B.  her  the  said  C.  D.,  in  manner  and  form,  and  by  the 
means  aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  kill  and  murder  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

^  3  Chitt.  776.     A  person  who  procures  another  to  administer  poison  who  is 
ignorant  of  the  nature  of  the  mixture,  is  a  principal  in  the  first  degree,  though 
absent  when  administered. 
24 


186  MURDER. 


251.  For  Murder  by  Poisoning. 

The  jurors  &cc.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
feloniously,  wilfully,  and  of  his  malice  aforethought,  contriving 
and  intending  one'C.  D.  with  poison,  feloniously,  wilfully,  aud  of 
his  malice  aforethought  to   kill  and  murder,  on  at 

feloniously,  wilfully,  and  of  his  malice  aforethought,  a  large 
f(uantity  of  deadly  poison,  called  white  arsenic,  to  wit,  tvyo 
drachms  thereof,  did  put,  mix,  and  mingle  into,  and  with  a  certain 
quantity  of  beer,  which  the  said  C.  D.  dien  and  there  intended 
aud  was  about  to  dritdv  (the  said  A.  B.,  then  and  there  well 
knowing  that  the  said  C.  1).  intended,  and  was  then  and  there 
about  to  drink  the  said  beer,  and  the  said  A.  B.  then  and  there 
well  knowing,  that  the  said  while  arsenic,  so  as  aforesaid  by  him 
put,  mixed,  and  mingled  into  and  with  the  said  beer,  to  be  a 
deadly  poison,)  and  that  the  said  C.  D.  afterwards,  to  wit,  on 
the  day  of  at  did   take,   drink,   and   swallow 

down  a  great  quantity,  to  wit,  half  a  pint  of  the  said  beer  with 
which  tiie  said  white  arsenic  was  so  mixed  and  mingled  by  the 
said  A.  B.  as  aforesaid ;  he  the  said  C.  D.  at  the  time  of  his  so 
drinking  and  swallowing  down  the  same,  not  knowing  that  there 
was  white  arsenic,  or  any  other  poisonous  or  hurtful  ingredient 
mixed  and  mingled  with  the  said  beer ;  by  means  whereof,  he 
the  said  C.  D.  then  and  there  became  sick  and  distempered  in 
his  body,  and  the  said  C.  D.  o(  the  poison  aforesaid,  so  by  him 
taken,  drank,  and  swallowed  down  as  aforesaid,  and  of  the  sick- 
ness occasioned  thereby,  from  the  said  day  of  in 
the  year  aforesaid,  to  the  day  of  in  the  sanrie  year, 
at  in  the  county  aforesaid,  did  suffer  and  languish,  and 
languishing  did  live  ;  on  which  said  day  of  in  the 
year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  he  the 
said  C.  D.,  of  the  poison  aforesaid,  and  of  the  sickness  and  dis- 
temper occasioned  thereby,  died.  And  so  the  jurors  aforesaid, 
upon  their  oaih  aforesaid,  do  say,  that  he,  the  said  A.  B.,  in 
manner  and  form  aforesaid,  him  the  said  C.  D.  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  kill  and  murder; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 


1  This  precedent  is  taken  from  Archibald,  p.  233,  and  is  drawn  with  correctness 
and  precision. 


MURDER.  187 


252.  For  forcing  the  Deceased  to  drink  Spirits  to  Excess} 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  of  he, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  contriving 
and  intending  one  C.  D.  feloniously,  wilfully,  and  of  his  malice 
aforethought  to  kill  and  murder,  on  at  in  the  county 

aforesaid,  with  force  and  arms,  in  and  upon  the  said  C.  D.,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault,  and  that  the  said  A.  B.  then  and  there,  wilfully,  felo- 
niously, and  of  his  malice  aforethought,  did  compel  and  force 
him  the  said  C.  D,  then  and  there  against  his  will,  to  take, 
drink,  and  swallow  down  a  great  quantity,  to  wit,  tliree  half 
pints  of  distilled  spirituous  liquor  called  brandy  ;  and  that  the 
said  C.  D.,  by  the  compulsion  and  force  aforesaid  of  him  the 
said  A.  B.,  then  and  there  against  his  will,  did  take,  drink,  and 
swallow  down  a  great  quantity  of  the  said  distilled  spirituous 
liquor  called  brandy,  to  wit,  the  quantity  of  three  half  pints  ;  by 
reason  of  which  said  drinking  and  swallowing  down  of  the  said 
three  half  pints  of  said  brandy  in  manner  aforesaid,  by  the  com- 
pulsion aforesaid,  and  against  the  will  of  him  the  said  C.  D.,  he 
the  said  C.  D.  then  and  there  became  suffocated  and  choked ; 
of  which  said  suffocation  and  chokina;  he  the  said  C.  D.  then 
and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said 
C.  D.  then  and  there,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder ; 
against  the  peace  of  the  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

253.  By  forcing  a  sick  Person  into  the  Street.^ 

The  jurors  &.C.,  upon  their  oath  present,  that  A.  B.,  of  he., 
intending  one  C.  D.  feloniously,  wilfully,  and  of  his  malice 
aforethought,   to   kill  and  murder,  on  at  with  force 

and  arms,  at  an  unseasonable  hour  in  the  night,  to  wit,  about  the 
hour  of  eleven  in  the  night  of  the  same  day,  in  and  upon  the 
said  C.  D.,  he  the  said  C.  D.  then  and  there  being  in  extreme 
sickness  and  weakness  of  body,  occasioned  by  a  fever,  and  then 

I  3  Chitt.  770. 

'  3  Clult.  771.  This  will  be  murder  upon  the  principle  of  the  case  of  the 
inhuman  son,  who  carried  about  his  sick  father  in  inclement  weather  till  he  died^ 
1  Hale,  431.  There  is  no  precedent  for  this  species  of  murder,  viz.,  that  of  ex- 
posing a  sick  father,  in  Tremaine,  Cro  C.  C,  Cro.  C.  A.,  Chitty,  or  Starkie. 


188  MURDER. 

and  there  confined  to  his  bed  in  the  dwelling-house  of  him  the 
said  A.  B.  there  situate,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  difl  make  an  assault ;  and  that  the  said  A.  B.  him 
the  said  C.  D.  from  and  out  of  the  said  bed,  and  also  out  of  the 
said  dwelling-house,  into  the  public  and  open  street  there,  did 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, remove,  force,  and  drive,  and  there  abandon  and  leave  ; 
he  the  said  A.  B.  then  and  there  well  knowing  the  said  C.  D. 
to  be  then  in  extreme  sickness  and  weakness  of  body,  occasioned 
by  the  fever  aforesaid ;  by  means  whereof,  he  the  said  C.  D., 
through  the  cold  and  the  inclemency  of  the  weather,  and  for 
want  of  due  care  and  other  necessaries  requisite  for  a  person  in 
such  sickness  and  weakness  as  aforesaid,  then  and  there  died  ; 
and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.,  him  the  said  C.  D.,  in  manner  and  form 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought  did 
kill  and  murder ;  against  the  peace  of  the  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

254.  By  confining  and  starving  an  Apprentice.^ 

The  jurors  &£c.,  upon  their  oath  present,  that  A.  B.,  of  &.c., 
contriving  and  intending,  of  his  malice  aforethought,  one  C.  D. 
then  being  an  apprentice  to  him  the  said  A.  B.,  feloniously, 
wilfully,  and  of  his  malice  aforethought  to  starve,  kill,  and  mur- 
der, on  at  and  on  divers  days  and  times  between 
that  day  and  the  day  of  Stc,  in  and  upon  the  said  C.  D. 
his  apprentice  aforesaid,  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought  did  make  divers  assaults,  and 
that  the  said  A.  B.  afterwards,  to  wit,  on  the  said  day  of 

and  continually  from  thence  until  the  day  of 

at  feloniously,   wilfully,  and  of  his   malice  aforethought, 

did  keep,  confine,  and  imprison  him  the  said  C.  D.  in  a  certain 
cellar,  part  and  parcel  of  a  certain  dwelling-house  there  situate 
and  being,  and  during  all  that  time  did  feloniously,  wilfully,  and 
of  his  malice  aforethought,  neglect  and  refuse  to  give  and  admin- 
ister, or  permit  to  be  given  or  administered  to  him  the  said  C.  D. 
being  so  confined  and  imprisoned  as  aforesaid,  sufficient  meat, 
drink,  victuals,  and  other  necessaries,  as  were  proper  and  requi- 
site for  the  sustenance,  support,  and  maintenance  of  the  body  of 

»  Chitt.  778  ;  Cro.  C.  A.  464  ;  and  Stark.  372,  for  confining  and  starving  a 
wife. 


MURDER.  189 

him  the  said  C.  D. ;  by  means  of  which  said  confinement  and 
imprisonment,  and  also  for  want  of  sufficient  meat,  drink,  victuals, 
and  other  necessaries,  as  were  proper  and  requisite  for  the  sus- 
tenance, support,  and  maintenance  of  the  body  of  him  the 
said  C.  D.,  he  the  said  C.  D.  from  the  said  day  of 

until  and  to  the  said  day  of  in  the  said  cellar,  at 

aforesaid,  in  the  county  aforesaid,  did  linger  and  pine, 
and  became  greatly  emaciated  and  consumed  in  his  body,  and 
during  all  that  time  did  suffer  and  languish,  and  languishing  did 
live  ;  on  which  said  day  of  he  the  said   C.  D.,  at 

aforesaid,  in  the  county  aforesaid,  of  such  confinement 
and  imprisonment,  and  for  want  of  such  sufficient  meat,  drink, 
victuals,  and  other  necessaries  as  were  proper  and  requisite,  for 
the  sustenance,  support,  and  maintenance  of  his  body,  did  mis- 
erably perish  and  die.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  A.  B.  him  the  said  C.  D.  in 
manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  kill  and  murder  ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

255.  Against  a  Woman  for  drowning  her  own  Child} 

The  jurors  &c.,  upon  their  oath  present,  that  A,  B.,  of  Sic, 
on  with  force  and  arms,  at  in  and  upon  one  C.  D., 

the  daughter  of  her  the  said  A.  B.,  she  the  said  C.  D.  being  an 
infant  of  tender  age,  to  wit,  of  the  age  of  one  year,  feloniously, 
wilfully,  and  of  her  malice  aforethought,  did  make  an  assault ; 
and  that  the  said  A.  B.  then  and  there  wilfully,  feloniously,  and 
of  her  malice  aforethought,  did  take  the  said  C.  D.  into  both  of 
her  hands,  and  did  then  and  there  wilfully,  feloniously,  and  of 
her  malice  aforethought,  cast,  throw,  and  push  the  said  C.  D. 
into  a  certain  pond  there  situate,  in  which  there  was  a  great 
quantity  of  water ;  by  means  of  which  casting,  throwing,  and 
pushing  of  the  said  C.  D.  into  the  pond  aforesaid,  by  the  said 
A.  B.  in  form  aforesaid,  she  the  said  C.  D.  in  the  pond  afore- 
said, with  the  water  aforesaid  was  then  and  there  choked,  suf- 
focated, and  drowned  ;  of  which  said  choking,  suffocation,  and 
drowning,  she  the  said  C.  D.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
she  the  said  A.  B.  her  the  said  C.  D.,  then  and  there  in  manner 
and  form  aforesaid,  wilfully,  feloniously,  and  of  her  malice  afore- 

»  3  Cfiitt.  770  ;  Stark.  373. 


190  MUKDF.R. 

thought,  did  kill  and  murder  ;  against  the  peace  of  said  Com- 
monvveallh,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

25G,  For  Murder  icith  a  Bludgeon. 

The  jurors  &cc.,  upon  their  oath  present,  that  John  Francis 
Knapp,  of  Salem,  in  the  county  of  Essex  aforesaid,  mariner,  on 
the  sixth  day  of  April,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty,  with  force  and  arms,  at  Salem  afore- 
said, in  the  county  aforesaid,  in  and  upon  one  Joseph  White, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault ;  and  that  he  the  siiid  John  Francis  Knnpp,  with  a 
certain  deadly  weapon  made  of  hard  wood  and  loaded  with  lead 
in  the  head  thereof,  called  a  bludgeon,  which'  he  the  said  John 
Francis  Knapp  in  his  right  hand  then  and  there  had  and  held, 
the  aforesaid  Joseph  White,  in  and  upon  the  left  side  of  the 
forehead  over  the  left  temple  of  him  the  said  Joseph  White, 
then  and  there  feloniously,  wilfully,  and  of  liis  malice  afore- 
thought, did  strike,  penetrate,  wound,  and  fracture,  giving  to  the 
said  Joseph  ^Vhite  then  and  there  with  the  bludgeon  aforesaid, 
in  and  upon  the  left  side  of  the  forehead,  over  the  left  temple  of 
him  the  said  Joseph  White,  one  mortal  wound  of  the  length  of 
three  inches,  and  of  the  width  and  depth  of  two  inches;  of  which 
said  mortal  wound  the  aforesaid  Joseph  Wiiite  then  and  there 
instantly  died  ;  and  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  die  said  John  Francis  Knapp  the  aforesaid  Jo- 
seph White  then  and  there  in  manner  and  by  the  means  afore- 
said, feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder  ;  against  the  peace  of  the  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  sucii  case  made  and 
provided. 


NUISANCE.  191 


NUISANCE. 

257.  For  erecting  a   Soap  Manufactory  near  a  Highivay  and 
DicelUno--llouse.^ 
The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
°"  ^^  near  to   a   public  street,  and  common  hi^^h- 

way  there,  and  also  near  to  the  duelling-houses  of  divers  citi- 
zens there  situate  and  being,  did  unlawfully  and  injuriously  erect 
and  build,  and  cause  and"  procure  to  be  erected  and  built,  a  cer- 
tain building  for  the  purpose  of  making  and  manufacturing  soap 
therein,   and  did   unlawfully  and   injuriously  make,   set  up,  and 
place,  and  did  cause  and  procure  to  be  made,  set  up,  and  placed 
in  the  said  building,  divers  furnaces,  stoves,  cauldrons,  coppers, 
and  boilers,  to  wit,  [here  insert  the  number  of  each,']  for  the  pur- 
pose of  boiling,  molting,  and  mixing  tallow,  soap-Ices,   and  other 
materials  used  in  the  making  and   manufacturing  of  soap  ;  and 
that  the  said  A.  B.  did,  on  the  day  and  year  aforesaid,   and  on 
divers  other  days  and  times  between  diat  day,  and  the  day  of  the 
taking  of  this  inquisition,  at  &:c.,  unlawfully  and   injuriously  boil, 
me  t,  and  mix  together,  and  did  cause  and  procure  to  be  boiled 
melted,   and   mixed   together  in  die  said  furnaces,  stoves,  caul- 
drons, and    boilers  respectively,  so  made,  set  up,  and  placed  in 
Uie  said  building   as  aforesaid,  divers  large  quantities   of  tallow 
soap-lees,  and  other  materials  used  in   the  making  and  manufac- 
turing of  soap,  for  the  purpose  of  making  and  manufacturing  die 
same  into  soap ;  and  did  tljien  and  there  make  and  inanufacUire 
and  did  cause  and  procure  to  be  made  and  manufactured,  divers 
large  quaniities  of  soap   from   the   same  tallow,  soap-lees,  and 
other  materials  ;  by  reason  of  which  said   premises,  divers  noi- 
some and  unwholesome  smokes,  vapours,  smells,  and  stenches,  on 
Itie  clays  and  times  aforesaid,  were  emitted  and  issued  from   the 
said  Duilding,  so  diat  the  air,  on  the  several  days  and  times  afore- 
said, at  &:c.,  was  thereby  greatly  filled  and  impregnated  with  the 
said  smokes,  vapours,  smells,   and   stenches,   and   was  rendered 
and  became,  and  was  corrupted,  offensive,  and  unwholesome  :  to 
tlie  great  damage  and   common  nuisance  of  all  the   citizens  of 
said  Lommonwealth,  there  inhabiting,   being,   and  residing   and 
going,  returning,  and  passing  through  the  said  street  and  common 
Highway  aloresaid,  and  against  the  peace  and  dignity  of  said  Com- 
monwealth. 


•  2  Staik.  657  ;  2  Chitt.  654,  655.     Add,  if  necessary,  another  count  for  con- 
Unmng  the  building,  &.c.  ;  for  a  precedent  for  this,  see  2  Stark.  656. 


192  NUISANCE. 


258.  For  mixing  Lees,  and  boiling  Tallow,  Soap,  Sfc.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  he., 
on  at  and  near  the  dwelling-houses  of  divers  citi- 

zens of  said  Commonwealth  there  situate,  and  also  near  to  divers 
public  streets,  being  coinmon  highways  there,  divers  large  quan- 
tities of  tallow,  oil,  lime,  potashes,  soap-lees,  and  other  noisome 
and  olTensive  materials,  did  boil,  melt,  and  mix  together,  and 
did  cause  to  be  boiled,  melted,  and  mixed  together ;  by  means 
whereof,  divers  noisome,  noxious,  and  unwholesome  smokes, 
vapours,  smells,  and  stenches,  on  the  days  and  times  aforesaid, 
at  aforesaid,  were  emitted  and  issued  from  the  said  tallow, 

oil,  soap-lees,  and  other  materials,  so'  boiled,  melted,  and  mixed 
togetiier  as  aforesaid  ;  and  die  air  there,  on  the  days  and  limes 
aforesaid,  was  thereby  greatly  filled  and  impregnated  with  the 
said  smokes,  vapours,  smells,  and  stenches  ;  and  was  diereby 
rendered,  and  then  and  there  became  and  was  greatly  corrupted, 
offensive,  and  unwholesome,  to  the  great  injury  and  common 
nuisance  of  all  the  citizens  of  said  Commonwealth,  there  inhab- 
iting, being,  and  residing,  and  going,  returning,  and  passing 
through  the  said  streets  and  common  highways  aforesaid  ;  against 
the  peace  and  dignity  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

259.  For  keeping  Hogs  near  a  public  Street.^ 

The  jurors  he,  upon  their  oath  f^resent,  that  A.  B.,  of  &ic., 
on  and  on  divers  other  days  and   times  between  that  day, 

and  the  day   of  the  taking  of  this  inquisition,  at  near  the 

dwelling-houses  of  divers  citizens  of  said  Commonwealth,  and 
also  near  divers  public  streets  and  common  highways  there,  did, 
and  yet  dodi  keep  (ten)  hogs  ;  and  the  said  hogs,  then  and  there, 
and  on  the  said  other  days  and  times,  at  unlawfully  and 

injuriously  did  feed,  and  yet  doth  feed,  with  ofFal  and  entrails  of 
beasts,  and  other  filth  ;  by  reason  whereof,  divers  noisome  and 
unwholesome  smells  and  stenches,  during  the  time  aforesaid,  did 
from  thence  there  arise,  and  the  air  there  was,  and  yet  is,  thereby 

1  2  Stark.  639. 

2  2  Stark.  659,  where  it  is  said  "  this  is  an  offence  at  common  law."  2  Ld. 
Raym.  1163  ;  2  Chitt.  647 ;  Cro.  C.  C.  492,  (6th  Ed.)  See  other  precedents  in 
2  Stark.  660,  and  2  Chitt.  648,  649,  for  erecUng  a  furnace  for  boiling  the  offal  of 
beasts,  for  boiling  bullocks'  blood,  and  against  a  butcher  for  using  his  shop  as  a 
slaughter-house  in  a  public  market. 


NUISANCE.  193 

greatly  corrupted  and  infected ;  to  llie  great  damage  and  com- 
mon nuisance  not  only  of  all  the  citizens  of  said  Commonwealth 
there  resident  and  dwel.ing,  but  also  of  all  other  citizens  thereof, 
passing  and  repassing  in,  by,  and  through  the  said  streets  and 
common  highways  there,  and  against  the  peace  and  flignity  of  the 
Commonwealth  aforesaid. 

2G0.  Fo7'  erecting  Obstructions  on  a  JS'avigabk  River.^ 

The  jurors   &ic.,  upon  their  oath  present,  that  a  certain   part 
of  the  river  situate  and  being  between  and 

and  also  wholly  situate  and  being  in  the  said  county  of 
is,  and  from  time  whereof  the  memory  of  man  is  not  to  the 
contrary,  hath  been,  an  ancient  river,  and  an  ancient  and  com- 
mon highway^  for  all  the  citizens  of  said  Commonweahh,  with 
their  ships,  lighters,  boats,  and  other  vessels,  to  navigate,  sail, 
row,  pass,  and  repass,  and  labor  at  their  will  and  pleasure,  with- 
out any  impediment  or  obstruction  whatever.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
A.  B.,  late  of  in   the  said  county  of  fisherman,  on 

and  on  divers  other  days  and  times  between  that  day 
and  the  day  of  the  taking  of  this  inquisition,  at  in  the  said 

county  of  unlawfully,  wilfully,  and   injuriously,  did  erect, 

place,  fix,  put,  and  set  in  the  said  river,  and  ancient  and  com- 
mon highway  there,  a  certain  [here  describe  the  obstruction  ac~ 
cording  to  the  fact ;  ]  and  that  the  said  A.  B.,  from  die  day  and 
year  first  aforesaid,  hitherto,  at  aforesaid,  the  said 

unlawfully,  wilfully,  and  injuriously,  hath  continued,  and  still 
doth  continue,  so  erected,  placed,  fixed,  put,  and  set  in  the  said 
river  and  ancient  and  common  highway  aforesaid  ;  by  means 
whereof  the  navigation  and  free  passage  of,  in,  through,  along, 
and  upon   the  said  river  and  ancient  and  common  high- 

way there,  on  the  same  day  and  year  aforesaid,  and  from  thence 
hitherto  halh  been,  and  still  is  greatly  obstructed,  straitened, 
and  confined  ;  so  that  the  citizens  of  said  Commonwealth,  navi- 
gating, sailing,  rowing,  passing,  repassing,  and  laboring  with  their 
ships,  lighters,  boats,  and  other  vessels,  in,  through,  along,  and 
upon  the  said  river  and  ancient  and  common  highway  there,  on 
the  same  day  and  year  aforesaid,  and  from  thence  hitherto,  could 
not  nor  yet  can  navigate,  sail,  row,  pass,  re[)ass,  and  labor,  with 
their  ships,  lighters,  boats,  and  other  vessels,  upon  and  about  their 


1  2  Stark.  661. 

*  A  river  common  to  all  is  properly  termed  a  highway.     1  Hawk.  c.  76,  §  1. 
25 


194  NUISANCE. 

lawful  and  necessary  business,  affairs,  and  occasions,  in,  through, 
along,  and  upon  the  said  river  and  ancient  and  common  high- 
way there,  in  so  free  and  uninterrupted  a  manner,  as  of  right 
ihey  ouglit,  and  before  have  been  used  and  accustomed  to  do ; 
to  the  great  damage  and  common  nuisance  of  all  the  citizens  of 
said  Commonwealth,  navigating,  sailing,  rowing,  passing,  repassing, 
and  laboring  with  their  ships,  boats,  lighters,  and  other  vessels  in, 
through,  along,  and  upon   the  said  river  and  the   ancient 

and  common  highway  there  ;  to  tiie  great  obstruction  of  the  trade 
and  navigation  of  and  upon  tiie  said  river,  and  against  the  peace 
and  dignity  of  the  Commonwealth  aforesaid. 

26 1 .  For  obstructing  a  public  Street  by  leaving  empty  Drays 

in  it} 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  &ic., 
on  and  on  divers  other  days  and  times  between  that  day 

and  the  day  of  taking  this  inquisition,  at  in  a  certain  street 

and  common  higiiway  diere,  called  used  for  all  the  citizens 

of  said  Commonwealth,  with  their  horses,  carriages,  and  carts,  to 
go,  return,  ride,  pass,  repass,  and  labor  at  their  free  will  and 
pleasure,  unlawfully  and  injuriously  did  put  and  place  three 
empty  drays,  and  did  then,  and  on  the  said  other  days  and  times 
there,  unlawfully  and  injuriously  permit  and  suffer  the  said  empty 
drays  respectively  to  be  and  remain  in  the  street  and  common 
highway  aforesaid,  for  the  space  of  three  hours,  on  each  of  the 
said  days,  whereby  the  street  and  common  highway  aforesaid, 
then,  and  on  the  said  other  days,  for  and  during  all  the  said 
times  on  each  of  those  days  respectively,  was  obstructed  and 
straitened  ;  by  reason  whereof,  the  citizens  of  the  said  Com- 
monwealth, during  the  days  and  times  aforesaid,  could  not  go, 
rettn-n,  pass,  repass,  ride,  and  labor,  with  their  horses,  carts,  and 
carriages,  in,  by,  and  through  the  same  street  and  highway  afore- 
said, as  they  were  wont  and  ought  to  do,  without  danger  and 
peril  of  their  Jives;  to  the  great  injury  and  common  nuisance  of 
all  the  citizens  of  said  Commonwealth,  going,  returning,  passing, 
repassing,  riding,  and  laboring  in,  by,  and  through  the  same 
street  and  highway ;  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 

'  2  Stark.  665. 


NUISANCE.  195 


262.  Against  the  Inhabitants  of  a  Town  for  not  repairing  a 
Highway.^ 

The  jurors  Sic,  upon  their  oath  present,  that  on  there 

was^  and  from  thence  liitherto  hath  been,  and  still  is,  a  public 
road  and  common  highway,  in  the  town  of  in  the  county 

aforesaid,  leading  from  in  the  said  town  of  to 

in  the  same  town,  for  all  the  citizens  of  said  Commonwealth, 
with  their  horses,  teams,  carts,  and  carriages,  to  go,  return,  pass, 
repass,  ride,  and  labor,  at  their  free  will  and  pleasure  ;  and 
that  the  aforesaid  public  road  and  common  highway  situated  as 
aforesaid,  in   the  said   town  of  on  w'as,    and    from 

thence  until  the  day  of  the  taking  of  this  inquisition,  hath  been, 
and  still  is,  out  of  repair,  ruinous,  miry,  broken,  and  incumbered 
with  rocks  and  stones,  so  as  to  be  inconvenient  and  dangerous  to 
the  lives  and  safety  of  the  citizens  of  this  Commonwealth,  having 
occasion  to  pass  and  repass,  ride  and  labor  upon  the  public  high- 
way and  common  road  aforesaid,  with  their  horses,  teams,  carts, 
and  carriages  ;  and  that  the  inhabitants  of  the  said  town  of 
in  their  corporate  capacity,  are  bound  and  obliged  by  the  laws 
of  this  Commonwealth,  to  keep  and  maintain  the  public  road 
and  common  way  aforesaid,  in  safe,  convenient,  and  complete 
repair  ;  yet  the  said  inhabitants,  during  all  the  days  and  times  afore- 
said, at  aforesaid,  have,  and  still  do,  neglect  and  refuse  to 
keep  the  said  public  road  and  common  highway  in  such  repair ; 
to  the  great  injury  and  common  nuisance  of  all  the  citizens  of 
said  Commonwealth,  having  occasion  to  pass,  repass,  and  labor 
upon  the  road  aforesaid,  with  their  horses,  teams,  carts,  and 
carriages ;  against  the  peace  and  dignity  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  iu  such  case  made  and 
provided.'^ 

'  Altered  from  2  Stark.  667,  and  made  conformable  to  the  precedents  used  in 
Massachusetts. 

*  In  the  older  precedents  it  is  stated,  "  from  time  whereof,"  &c.  but  this  is 
unnecessary.  2  Stark.  6G7,  note  (c.)  quotes  3  T.  R.  265 ;  2  Saund.  158,  b. 
n.  4.     See  the  other  explanatory  notes  in  2  Stark.  667,  608. 

^  The  repair  of  public  roads  in  Massachusetts  is  provided  for  by  statute  of 
1786,  c.  81.  If  there  be  bridges  or  causeys  on  the  road  complained  of,  the 
fact  may  be  alleged  in  the  indictment  thus  :  "  and  the  several  bridges  &c.,  sit- 
uated on  the  same  road,"  &c.  are  out  of  repair,  &c. 


196  NUISANCE. 


263.  For  hnjing  Rubbish  in  a  Street,  wherchy  a  Carnage  was 

overturned.^ 

The  jurors  &:c.,   upon  their  oatli  present,  that  A.  B.,  of  &;c., 
on  at  in  a  certain  public  street  and  common  high- 

way there,  called  Court  Street,  did  unlawfully  and  injuriously, 
put,  place,  and  lay,  and  cause  and  procure  to  be  put,  placed, 
and  laid,  a  large  quantity  of  bricks,  to  wit,  (three  cart-loads  of 
bricks,)  [_stnte  the  incumbrance  according  to  (he  fact,']  and  the  said 
bricks,  in  the  said  street  and  cornn)on  highway  there,  from  the 
said  day  of  until  the  day  of  the  taking  of  this  in- 

quisition, unlawfully  and  injuriously  did  continue,  and  still  doth 
continue,  without  any  inclosure  or  fence  whatever,  and  without 
any  light  hung  out  or  placed  in  the  night  time,  to  prevent  the 
injury  and  damage  that  might  happen  to  the  citizens  of  said 
Commonwealth,  with  their  horses,  carls,  and  carriages,  passing 
and  repassing  through  the  said  street  and  common  highway  ; 
whereby  the  citizens  of  said  Commonwealth  could  not,  during 
the  time  last  aforesaid,  pass  and  repass  through  and  along  the  said 
street  and  common  highway  without  great  danger  of  their  lives. 


1  See  Cio.  C.  A.  249.  This  precedent  is  there  said  to  have  been  found  and 
determined  in  the  Court  of  King's  Bench.  See  also  a  similar  precedent  in  2 
Chitt.  G22,  623,  cites  Cro.  C.  C.  315,  (8th  Ed.)  See  note,  2  Chitt.  607-610. 
It  is  there  stated  that  every  unauthorized  obstruction  to  a  highway,  to  the  an- 
noyance of  the  people,  is  an  indictable  ofience.  PerLd.  Ellenborough,  3  Camp. 
227.  As  where  a  wagoner  constantly  suffers  wagons  to  stand  on  the  side  of 
the  highway  on  which  his  premises  are  situate,  an  unreasonable  time,  he  is 
guilty  of  a  nuisance,  6  East,  422.  And  if  stage-coaches  regularly  stand  in  a 
public  street,  though  for  the  accommodation  of  passengers,  so  as  to  obstruct 
the  regular  track  of  carriages,  the  proprietor  may  be  indicted.  3  Campb.  224. 
So  laying  and  cuUing  logs  of  wood  or  timber  in  the  street,  which  he  could  not 
otherwise  convey  into  his  premises,  will  not  be  excused  by  the  necessity 
which  he  himself  created.  2  Campb.  230.  It  is  even  said  that  "  if  coaches  on 
the  occasion  of  a  rout,  wait  an  unreasonable  time  in  the  public  street,  and 
obstruct  the  transit  of  those  who  wish  to  pass  in  carriages  or  on  foot,  the  per- 
sons who  cause  such  carriages  so  to  wait  are  guilty  of  a  nuisance."  3  Campb. 
226.  A  mere  transitory  obstruction,  which  must  necessarily  occur,  is  excusable  ; 
such  as  erecting  a  scaffold  for  repairing  a  house ;  the  unloading  of  a  cart  or  wag- 
on, and  the  delivery  of  hrge  articles,  sdch  as  casks  of  liquor,  if  done  with  as 
little  delay  as  possible,  are  lawful ;  though  if  an  unreasonable  time  were  employ- 
ed in  the  operation,  they  would  become  nuisances.  3  Campb.  231.  Independ- 
ently of  any  legal  proceedings,  any  person  may  lawfully  abate  a  public  nuisance, 
if  it  obstruct  the  passage  of  the  people. 


NUISANCE.  197 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  on  about  the  hour  of  ten 

in  the  nii^ht  of  the  same  day,  at  aforesaid,  in  the  county 

aforesaid,  one  C.  D.  was  driving  a  certain  carriage  and  horses 
through  and  along  the  said  street  and  common  highway  ;  and 
that  the  said  C.  D.,  in  so  passing  through  the  said  street  and 
common  highway,  with  the  said  carriage  and  horses,  was  then 
and  there,  by  means  of  the  bricks  so  put,  placed,  and  laid  as 
aforesaid,  overturned  and  prostrated ;  then  and  there  having 
within  said  carriage  one  E.  F.,  in  which  carriage  the  said 
E.  F.  then  and  there  was;  and  that  the  said  E.  F.  was 
then  and  there  so  greatly  bruised,  hurt,  and  wounded  by  being 
overturned,  prostrated,  and  thrown  out  of  the  said  carriage  in 
manner  aforesaid,  that  he  the  said  E.  F.  afterwards,  to  wit,  on 
the  day  of  at  in  the  year  aforesaid,  of  such 

hurts,  bruises,  and  wounds,  died  ;  to  the  great  damage  and 
common  nuisance  of  all  the  citizens  of  said  Commonwealth, 
going,  returning,  passing,  and  repassing  with  their  horses  and 
carriages  in,  by,  and  through  the  public  street  and  common 
highway  aforesaid,  diu'ing  the  time  aforesaid,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

264.  For  erecting  a  Building  on  a  common  Highway} 

The  jurors  Sec,  upon  their  oath  present,  that  there  is  now, 
and  long  before,  and  at  the  time  of  tlu  obstruction  and  nuisance 
hereinafter  mentioned,  there  was  a  common  and  public  highwa)^ 
in  the  town  of  B.,  in  the  county  aforesaid,  leading  from  [here 
describe  the  ivay,^  for  all  the  citizens  of  the  said  Commonwealth 
to  go,  return,  pass,  and  repass  in  and  along  the  same,  at  their 
will  and  pleasure.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  A.   B.,  of  yeoman,  on 

the  day  of  at  B.  aforesaid,  in  the  county  aforesaid, 

did  unlawfully  and  injuriously  erect  and  build,  and  cause  to  be 
erected  and  built,  a  part  of  a  certain  edifice  and  building  in  and 
upon  a  certain  part  of  the  common  and  public  highway  aforesaid, 
to  wit,  square  feet  of  the  same  common  and  public  high- 

way ;  and  the  said  part  of  said  edifice  and  building  so   as   afore- 
said erected  and  built  in  and  upon  the  said  part  of  the  common 
and  public  highway  aforesaid,   he  the  said  A.  B.,  from  the  said 
day  of  until  the  day  of  the  finding  of  this  bill,  un- 


1  See  2  Chitt.  612,  note  (/.)   This  indictment  was  framed  by  a  very  eminent 
pleader. 


198  NUISANCE. 

lawfully  and  injuriously  did  continue,  keep  up,  and  maintain ; 
whereby  the  said  common  and  public  highway  hath  been,  for 
and. during  all  the  time  aforesaid,  and  still  is,  greatly  narrowed, 
obstructed,  and  stopped  up,  so  that  the  citizens  of  said  Common- 
wealth could  not,  during  the  time  aforesaid,  nor  can  they  now, 
go,  return,  pass,  and  repass  in  and  upon  the  common  and  public 
highway  aforesaid,  as  they  were  before  used  and  accustomed, 
and  still  of  right  ought  to  do  ;  to  the  great  damage  and  common 
nuisance  of  all  the  citizens  of  said  Commonwealth,  in  the  com- 
mon and  public  highway  aforesaid  going,  returning,  passing,  and 
repassing,  and  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

265.  For  keeping  a  disorderly  House} 

The  jurors  &;c.,upon  Uieir  oath  present,  that  A.  B.,of  Stc,  la- 
borer, on  tlie  day  of  and  on  divers  other  days  and  times 
between  diat  day  and  the  day  of  taking  Uiis  inquisition,  at 
a  certain  connnon,  ill-governed,  and  disorderly  house  unlawfully 
did  keep  and  maintain  ;  and  in  the  said  house,  for  his  own 
lucre  and  gain,  certain  evil  disposed  persons,  as  well  men  as 
women,  of  evil  name,  fame,  and  conversation,  to  come  together 
on  the  days  and  times  aforesaid,  there  unlawfully  and  willingly 
did  cause  and  procure  ;  and  the  said  persons,  in  the  said  house, 
at  unlawful  times,  as  well  in  the  night  as  the  day,  on  the  days 
and  times  aforesaid,  there  to  be  and  remain,  drinking,  tipling, 
cursing,  swearing,  quarrelling,  and  otherwise  misbehaving  them- 
selves, unlawfully  did  permit  and  suffer  ;  to  the  great  injury  and 
common  nuisance  of  all  the  peaceable  citizens  of  said  Common- 
wealth there  residing,  inhabiting,  and  passing,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

206.  For  keeping  a  common  Bawdy  House.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
laborer,  on  the  day  of  and  on  divers  other  days  and 

^  See  2  Chitt.  41,  for  a  precedent  for  bathing  publicly,  near  to  public  ways, 
and  habitations. 

2  2  Chitt.  40 ;  Cio.  C,  C.  302,  (8th  Ed.)  See  note  (6.)  2  Chitt.  40,  where 
it  is  said  that  this  is  the  common  printed  form  used  in  England.  It  is  not  ne- 
cessaiy  to  state  particulars  ;  as  the  names  of  those  who  frequented  the  house. 
2  Burr.  1232  ;  1  T.  R.  752-754.  But  evidence  of  particular  instances  of  illicit 
intercourse  may  be  given  in  evidence  under  the  general  charge.  If  the  person 
be  only  a  lodger  and  make  use  of  her  room  for  disorderly  purposes,  she  would  be 


FALSE  PERSONATING.  199 

times  as  well  before  as  afterwards,  to  the  day  of  taking  this  in- 
quisition, at  B.  aforesaid,  in  the  county  aforesaid,  a  certain 
common  house  of  ill  fame,  unlawfully  and  wickedly  did  keep 
and  maintain  ;  and  the  said  house,  for  the  sake  of  lucre  and 
gain,  divers  evil  disposed  persons,  as  well  men  as  women,  and 
common  prostitutes,  on  the  days  and  times  aforesaid,  as  well  in 
the  night  as  in  the  day,  there  unlawfully  and  wickedly  did  re- 
ceive and  entertain ;  and  in  which  house  the  said  evil  disposed 
persons  and  common  prostitutes,  by  the  consent  and  procure- 
ment of  the  said  A.  B.,  on  the  days  and  times  aforesaid,  there 
did  commit  whoredom  and  fornication  :  whereby  divers  unlaw- 
ful assemblies,  riots,  affrays,  disturbances,  and  violations  of  the 
peace  of  the  said  Commonwealth,  and  lewd  offences,  in  the  same 
house,  on  the  days  and  times  aforesaid,  as  well  in  the  night  as  in 
the  day,  were  there  committed  and  perpetrated  ;  to  the  great  dam- 
age and  common  nuisance  of  all  the  citizens  of  said  Common- 
wealth, in  manifest  destruction  and  subversion  of,  and  against 
good  morals  and  good  manners,  and  against  the  peace  and  dig- 
nity of  the  Commonwealth  aforesaid. 


FALSE  PERSONATING. 


267.  Form  of  Indictment  for  personating  the  Proprietor  of  Con- 
solidated Bank  Annuities,  and  transferring  the  same} 

The  jurors  &;c.,  upon  their  oath  presentj  that  A.  B.,  of  Stc, 
on  at  was  possessed   of,  and  entitled  to,  a  certain 

transferable  share,  to  wit,  [here  state  the  facts  relative  to  the  an- 

guilty  of  keeping  a  bawdy  house.  In  1  Salk.  384,  it  was  decided  that  a  wife,  as 
well  as  a  husband,  may  be  indicted  for  keeping  a  bawdy  house,  because  the 
charge  does  not  respect  the  ownership,  but  the  criminal  management  of  the 
house.  Sh  IJfi'  *.  J-^ .  5-  *. 

>  4  Went.  55  ;  1  Leach,  434,  4.35,  abstract  of  an  indictment ;  3  Chitt.  1085  ; 
also  1083,  another  precedent,  all  of  which  are  upon  British  statutes.  This  of- 
fence has  been  considered  and  treated  as  a  conspiracy.  2  Russ.  1658  ;  2  East 
P.  C.  c.  20,  §  6,  p.  1010,  and  nearly  allied  to  forgeiy.  Renou&rd  v.  JVoble, 
2  Johns.  Cases,  293  ;  Ingersol's  Digest,  1-53  ;  Gord.  Digest,  art.  3G26;  act  of  the 
United  States  of  March  3,  1925,  §  16,  19.  Is  it  not  a  cheat  by  false  pretences, 
and  indictable  as  such  upon  tlie  statute  for  punishing  them  r 


200       PERJURY  AND  SUBORNATION  OF  PERJURY. 

nuities  ;  ]  the  proprietors  of  which  said  annuities  so  as  aforesaid 
established,  then,  to  wit,  on  Sec,  had  in  respect  of  said  annui- 
ties, transferable  shares  in  the  capital  stock  of  said  annuities  in 
proportion  to  their  respective  annuities  j  and  that  he  the  said 
A.   B.,  on  the   said  day  of  was  the  true  and   real 

proprietor  of  a  share  in  the  said«nnuhies ;  and  in  respect  there- 
of, then  and  there  had  the  said  transfering  share  before  men- 
tioned, of  and  ill  the  said  capital  stock  of  the  said  annuities. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  lliat  C.  D.,  late  of  kc,  well  knowing  the  premises,  but 
wickedly  devising  and  intending  the  bank  of  ice.  to  defraud,  af- 
terwards, to  wit,  on  at  aforesaid,  lalsely,  deceitfully, 
and  fraudulently  did  personate  the  said  A.  B.,  the  true  and  real 
proprietor  of  said  share,  of  and  in  the  said  capital  stock  of  said 
annuities ;  and  thereby  did  falsely  and  fraudulently  transfer  the 
said  share  ol  said  A.  B.  Sec,  of  and  in  the  said  capital  stock  of 
the  said  annuities,  unto  one  E.  F.,  as  if  he  the  said  E.  F.  then 
was  the  true  and  lawful  owner  of  the  said  share,  and  of  and  in 
the  said  capital  stock  of  the  said  annuities ;  against  the  peace 
and  di2;niiv  of  the  Commonwealth  aforesaid. 


PERJURY  A^D  SUBORXATIOX  OF  PERJURY. 

268.  For  Perjury  in  an  .iffidavit  to  hold  to  Bail,  in  falsely 
sicearing  to  a  Debt} 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  of  &:c., 
wickediv  and  maliciously  contriving  and  intending  one  C.  D.  un- 
lawfully to  aggrieve  and  oppress,  and  the  said  C.  D.  to  great 
expense  of  his  moneys,  wickedly  and  maliciously  to  put  and 
brins: ;  and  also  to  cause  the  sum  of  to  be  endorsed  upon 

a  process  of  the  court  of  by  virtu^  of  which  the  said  C.  D. 

might  be  arrested  to  answer  in  the  same  court,  at  the  suit  of 
E.  F.,  with  intent  that  the  said  C.  D.  should  be  compelled  to  find 
bail  for  the  aforesaid  sum  of  on  at  came  in 

his  proper  person  before  G.  H.,  Esquire,  then  being  one  of  the 
justices  of  said  court ;  and   then  aud  there  in  due  form  ol  law 


1  2  Chitt.  323,  324;   Cro.  C.  C.  53*,  (6th  Ed.) 


PERJCET.  201 

was  sworn,  and  did  take  his  oath  before  the  said  G.  H.  Esquire, 
one  of  the  justices  of  the  said  court  as  aforesaid,  (he  the  said 
G.  H.  thee  and  there  having  sufficient  and  competent  authoritj 
and  power  to  administer  an  oath  to  the  said  C.  D.  in  that  behalf; ) 
and  that  the  said  C.  D..  being  so  sworn  as  aforesaid,  then  and 
there,  before  the  said  G.  H.  Esq.,  upon  his  oath  aforesaid,  false- 
ly, wickedly,  wilfully,  and  corruptly,  did  say,  depose,  swear,  and 
make  affidavit  in  writing,  (among  other  tbinzs.)  in  substance  apd 
to  the  effect  following ;  that  is  to  say,  \_here  insert  that  part  of  the 
affidarit  that  isfahe;^  as  by  the  same  affidavit  now  filed  in  the 
court  aforesaid,  more  fully  appears ;  whereas  in  truth  and  in  fact, 
the  said  C.  D.  [^here  negaiire  the  facts  aJhged  as  false.^  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.,  in  manner  and  form  aforesaid,  did  commit  wilful 
and  corrupt  perjur}-,  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  io  such  case  made  and  pro- 
vided. 

2G9.  For  Perjury,  by  a  f  fitness,  on  the  Trial  of  an  Issue  in  the 
Supreme  Judicial  Courts 

The  jurors  k.c.,  upon  their  oath  present,  that  heretofore,  to 
wit,  at  the  Supreme  Judicial  Court,  begun  and  Lolden  at  B., 
within  and  for  tlie  count}-  of  S.,  before  the  Hon.  I.  P.,  Esq.,  then 
being  Chief  Justice"  of  the  Supreme  Judicial  Court,  on  the 
Tuesday  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  twenty-two,  in  the  said  court,  amongst  the  pleas  of 
the  said  term,  a  certain  issue  was  duly  joined  in  the  said  court, 
between  C.  D.  the  plaintiff,  and  E.  F.  the  defendant,  in  a  certain 
action  of  trespass  for  assault  and  battery  and  false  imprisonment ; 
which  action  before  that  time  had  been  commenced  between  tie 
parties  in  that  behalf,  and  was  then  pending  in  the  Supreme  Ju- 
dicial Court  aforesaid ;  and  that  afterwards,  to  wit,  at  the  sitting 
of  said  court,  before  I.  P.,  Esq.,  Chief  Justice  thereof,  the  same 
issue  came  on  to  be  nied,  and  then  and  there  was  tried,  in  due 
form  of  law,  by  a  jury  of  the  said  county  of  S.,  in  that  behalf 
duly  irapannelled  and  swom  between  the  said  parties ;  and  that, 
upon  the  trial  of  the  said  issue,  one  G.  H.,  late  of  in  the 

county  of  laborer,   did   then    and  there,   to   wit,   on   the 


>  2  Siari.  521. 

•  If  any  other  of  the  jusiices  of  the  SjpreiDe  Ccan  preside  at  the  trial,  his 
name  iiiu?t  be  m«ened,  and  the  oaxh  al!?s?d  to  t-e  administered  by  hiiD,  in  tbe 
same  maDner  as  is  here  alleged  as  to  the  Chief  Justice. 

26 


203  PERJURY. 

day  of  in  the  year  aforesaid,  at  B.  aforesaid,  in 

the  county  of  S.  aforesaid,  appear,  and  was  produced  as  a  wit- 
ness for  and  on  bihalf  of  said  C.  D.  the  plaintift",  and  that  the 
said  G.  H.  was  sworn,  and  did  then  and  there  take  his  corporal 
oath  bel'ore  the  said  1.  P.,  Cliief  Justice  as  aforesaid,  that  the 
evidence  which  he  should  give  to  the  said  court  and  jury,  touch- 
ing the  matters  in  question  on  the  said  issue,  should  he  the 
trull),  the  whole  truth,  and  nothing  but  the  truth  ;  the  said  I.  P., 
Esq.,  Chief  Justice  as  albresaid,  then  and  there  having  suflicient 
and  competent  power  and  aiilhority  to  administer  the  said  oath 
to  the  said  G.  H.  in  that  behalf;  and  then  and  there,  upon  the 
trial  of  said  issue,  it  became  and  was  a  material  question,  wheth- 
er the  said  E.  F.  had  struck  the  said  C.  D.,  or  had  dragged 
him  by  the  hair  of  his  head  ;  and  that  thereupon  the  said  G.  H., 
being  so  produced  and  sworn  as  aforesaitl,  and  being  then  and 
there  lawfully  required  to  depose  the  truth  in  a  proceeding  in  a 
course  of  justice,  devising  and  wickedly  intending  to  cause  a 
verdict  to  pass  against  the  said  E.  F.  and  for  the  said  C  D.,  on 
the  trial  of  said  issue,  did  then  and  there,  before  the  said  I.  P., 
Escj.,  the  Chief  Justice  as  aforesaid,  and  the  said  jury  sworn  as 
aforesaid  to  try  the  said  issue,  falsely,  maliciously,  wilfully,  and 
corruptly,  and  by  his  own  proper  act  and  consent,  depose;,  swear, 
and  give  evidence  on  the  trial  aforesaid,  amongst  other  things, 
before  the  said  I.  P.,  Esq.,  Chief  Justice  as  aforesaid,  and  to  the 
jurors  of  the  said  jury,  so  sworn  between  the  parties  aforesaid,  in 
substance  as  follows,  \Jiere  set  forth  the  false  testimony,  with  proper 
inuendocs ;  ]  whereas  in  truth  and  in  fact,  [Acre  negative  the 
false  testimony^]  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  G.  H.,  in  manner  and  form 
aforesaid,  and  of  his  own  most  corrupt  mind,  did  falsely,  wicked- 
ly, wilfully,  and  corruptly  commit  wilful  and  corrupt  perjury  ;  to 
the  manifest  perversion  of  public  justice,  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

270.  For  Perjury,  in  an  Answer  sworn  to  before  a  Master  in 

Chancery} 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.j  of  Sic, 
heretofore,  to  wit,  on  &;c.,  at  &;c.,  did  exhibit  his  bill  of  com- 
plaint, in  writing,  against  one  E.  F.  therein  described,  of  said 
B.,  yeoman,  in  the   Supreme  Judicial  Court  of  this  Common- 

1  2  Staik.  524;  2  Chitt.  411. 


PERJURT. 


203 


wealth,  begun  and  held  at  W.,  within  and  for  the  county  of  W., 
on    the  Tuesday  of  in  the  year  of  Sic. ;  and  the  said 

C.  D.,  in  and  by  his  said  bill  of  complaint,  among  other  things, 
stated  and  alleged,  in  substance,  and  to  the  effect  following,  to 
wit,  [here  insert  (hat  part  of  the  bill,  concerning  which  the  perju- 
ry ivas  committed,]  as  in  and  by  the  said  bill  of  complaint  of  the 
said  C.  D.  remaining  filed  of  record,  in  the  said  Supreme  Judi- 
cial Court,  amongst  other  things,  more  fully  appears.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  E.  F.  die  defendant,  in  the  said  bill  of  complaint, 
afterwards,  that  is   to  say,   on  the  day  of  Sic,   at   said 

B.,  in  the  county  of  S.,  did  come,  in  his  own  proper  person, 
before  G.  H.,  Esq.,  then  and  there  being  one  of  the  masters  in 
chancery  of  the  said  Supreme  Judicial  Court,  and  then  and  there 
did  exhibit  and  produce  to  the  said  G.  H.,  Esq.,  the  answer  in 
writing  of  him  the  said  E.  F.  to  the  said  bill  of  complaint  of  the 
said  C.  D.,  entitled,  "  The  answer  of  E.  F.,  the  defendant,  to 
the  bill  of  complaint  of  C.  D.,  complainant ;  "  and  the  said  E.  F. 
was  then  and  there  sworn  in  due  form  of  law,  and  took  his  cor- 
poral oath,  touching  and  concerning  the  matters  contained  in  his 
said  answer  by  and  before  the  said  G.  H.,  Esq.,  he  the  said 
G.  H.  so  then  being  one  of  the  masters  in  chancery  in  the  said 
Supreme  Judicial  Court,  and  dicn  and  there  having  sufficient  and 
competent  power  and  authority  to  administer  an  oath  to  the  said 
E.  F.  in  that  behalf;  and  that  the  said  E.  F.,  being  so  sworn  as 
aforesaid,  and  being  then  and  there  lawfully  required  to  declare 
and  depose  the  truth  in  a  proceeding  in  a  course  of  justice,  did, 
upon  his  oath  aforesaid,  concerning  the  matters  contained  in  his 
said  answer,  before  the  said  G.  H.  Esq.,  then  as  aforesaid  being 
one  of  the  masters  in  chancery  of  the  said  Supreme  Judicial  Court, 
then  and  there  swear,  that  so  much  of  the  said  answer  of  him 
the  said  E.  F.  as  related  to  his  own  acts  and  deeds  was  true ; 
and  that  the  said  E.  F.,  being  so  sworn  as  aforesaid,  intending 
unjustly  to  aggrieve  the  said  C.  D.,  the  said  complainant  as 
aforesaid,  in  his  answer  aforesaid,  before  the  said  G.  H.,  Esq., 
he  being  then  as  aforesaid  one  of  the  masters  in  chancery  in  the 
said  Supreme  Judicial  Court,  (and  having  sufficient  and  com- 
petent authority  as  aforesaid,)  falsely,  knowingly,  wilfully,  and 
corruptly,  by  his  own  act  and  consent,  upon  his  oath  aforesaid, 
did  answer,  swear,  and  affirm,  amongst  other  things,  in  substance 
as  follows,  that  is  to  say,  "  and  this  defendant  (meaning  himself 
the  said  E.  F.)  says,"  [here  insert  verbatim  that  part  of  the  an- 
swer, relative  to  and  comprising  the  part  in  which  the  perjury  is 
alleged  to  have  been  committed,']  as  by  the  said  answer  of  him 


204  PERJURY. 

the  said  E.  F.  still  remaining  in  the  Snpreme  Judicial  Court 
aforesaid,  at  B.  aforesaid,  in  the  county  of  S.  aforesaid,  amongst 
other  things  will  appear;  whereas  in  truth  and  in  fict,  [then  go 
on  to  negative  the  answer  in  the  ivords  of  it,  and  in  every  part  of 
it  which^is  alleged  to  be  false]  And  so  the  jurors  afores;iid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  E.  F.  falsely  and 
wickedly,  wilfully  and  corruptly,  in  manner  and  form  afore- 
said, did  commit  wilful  and  corru|)t  perjury,  to  the  great  damage 
of  him  the  said  C.  D. ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

27 1 .  For  Perjury,  in  Answer  to  Interrogatories  exhibited  in 
Chancery} 

The   jurors  &;c.,  upon    their  oath    present,   that  one  C.  D. 
heretofore,  to  wit,  on  did  exhibit  certain  interrogatories,  in 

writing,  in  the  Supreme  Judicial  Court   of  this  Commonwealth, 
begunand  holden  at  13.,  within  and  for  the  county  of  S.,  on  the 
Tuesday  of  in  the  year  of  Stc,  in  a  certain  case 

before  that  time  commenced  by  bill  of  complaint,  and  then 
pending  and  at  issue  in  the  same  court,  after  certain  pleadings 
and  proceedings  had  been  had  therein  ;  in  which  said  suit  one 
E.  F.  was  complainant,  and  the  said  C.  D.  was  respondent,  in 
order  that  the  said  interrogatories  might  be  adujinistered,  ac- 
cording to  the  course  and  practice  of  the  said  court  in  its  chan- 
cery jurisdiction,  to  certain  witnesses  to  be  produced,  sworn,  and 
examined  in  the  said  cause,  on  the  part  and  behalf  of  the  said 
C.  D.,  the  said  defendant  therein,  touching  and  concerning  a 
certain  written  paper,  purporting  to  contain  an  agreement  for 
the  lease  of  a  certain  house  and  premises  therein  mentioned, 
from  the  said  E.  F.  to  the  said  C.  D. ;  and  that  it  became  and 
was  a  material  question  in  the  said  cause  between  the  said  par- 
ties, and  to  be  deposed  to  by  the  said  witnesses  in  answer  to  the 
said  interrogatories,  whether  the  said  E.  F.  had  declared  that  he 
would  release  the  said  C.  D.  from  the  said  agreement,  or  had 
released  him  from  the  performance  thereof;  and  in  and  by  one 
of  the  interrogatories,  exhibited  as  aforesaid,  the  said  witnesses 
were  interrogated  as  follows,  that  is  to  say,  [here  copy  the  inter- 
rogatories ivilh  necessary  inuendoes.']  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  G.  H.  of 
in   the    county  of  yeoman,  and  one  of  the  whnesses  to 


2  Chitt.  397-399 ;  4  Went.  292. 


PERJURY.  205 

whom  the  interrogatories  in  the  said  cause  were  to  be,  and  were 
accordingly,  afterwards,  to  wit,  on  at  administered, 

then  and  there  came  in  his  own  proper  person  before  the  said 
Supreme  Judicial  Court,  and  having  seen  and  understood  the 
said  interrogatories,  so  exhibited  in  the  said  court  as  afore- 
said, then  and  there,  before  1.  P.,  Esq  ,  Chief  Justice  of  the  said 
Supreme  Judicial  Court,  he  the  said  1.  P.,  Esq.,  as  Chief 
Justice  as  aforesaid,  then  and  there  having  sufficient  and  com- 
petent power  and  authority  to  administer  an  oath  to  the  said 
G,  H.  in  that  behalf,  was  duly  sworn  before  the  said  court  by  the 
said  I.  P.,  Esq.,  Chief  Justice  as  aforesaid  ;  and  the  said  G.  H. 
then  and  there,  on  his  said  oath  before  the  said  court,  being  then 
and  there  required  to  depose  the  truth  in  a  proceeding  in  a 
course  of  justice,  did  swear,  that  he  would  make  true  answers  to 
all  such  questions  as  should  be  asked  iiim  by  the  said  court  or 
their  order,  upon  the  interrogatories  aforesaid,  at  the  time  of  his 
examination,  and  that  he  would  speak  the  truth,  tiie  whole  truth, 
and  notliing  but  the  truth,  Vv-ithout  favor  or  affection  to  the  said 
parties  in  the  said  cause  ;  and  that  the  said  G.  H.  afterwards, 
to  wit,  on  the  day  of  was  duly  examined  in  the  said 

court  upon  the  said  interrogatories  ;  and  that  the  said  G.  H. 
intending  unjustly  to  aggrieve  the  said  E.  F.,  the  cofn|)lainnnt 
aforesaid,  did  then  and  there,  in  his  answer  to  the  said  fourth 
interrogatory,  falsely,  knowingly,  wilfully,  and  corruptly,  by  his 
own  act  and  consent,  amongst  other  things,  answer,  swear,  and 
affirm,  in  writing,  as  follows,  that  is  to  say,  [Acre  state  the  answer 
with  necessary  inuendoes ;  ]  as  by  the  said  answer  of  the  said 
G.  H.  to  the  said  fourth  interrogatory  remaining  filed  in  the 
court  aforesaid,  will,  amongst  other  things,  fully  appear ;  where- 
as in  truth  and  in  fact,  [then  go  on  to  negative  the  answer  in  all 
its  parts,  comprehending  what  is  alleged  to  be  false. ~\  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  G.  H.,  then  and  there,  knowingly,  wickedly,  falsely,  wil- 
fully, and  corruptly,  in  manner  and  form  aforesaid,  did  comn)it 
wilful  and  corrupt  perjury  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


20G  PERJURY. 


272.  For  Perjury,  by  a  Bankrupt,  in  his  Examination  before 
the  Cominissionrrs  in  the  Circuit  Court  of  the  United 
States.^ 

Tlie  jurors  Sic,  upon  tlieir  oatli    present,  tlmt  heretofore,  to 
wit,  on   the  day  of  in    the  year  of  our   Lord    one 

thoii'^and  eit^lil  Iiaiulred  and  three,  a  certain  coinniission  of 
bankruptcy,  bearing  date  llw  same  day  and  year  aforesaid, 
founded  upon  the  act  of  the  Coni^ress  of  the  United  States,  en- 
tilled  "  An  act  to  establish  a  uniform  system  of  bankruptcy 
throughout  the  United  States,"  was  duly  awarded  and  issued 
under  the  hand  and  seal  of  the  Honorable  Richard  Peters,  judge 
of  the  District  Court  of  the  United  Stales  for  the  Pennsylvania 
District,  against  C.  D.,  usually  residing  in  the  cily  of  Philadel- 
phia, in  the  said  Pennsylvania  District,  using  and  exercising  the 
trade  and  business  of  merchandise  and  tin  manufacturer,  and 
directed  to  Mahlon  Dickerson,  Thomas  Cumpston,  and  John 
Sargent,  I^sqrs.,  (being  three  of  ihe  general  commissioners  of 
bankruptcy,  duly  appointed  by  the  President  of  the  said  United 
States  in  the  said  Pennsylvania  District,)  and  the  said  C.  D. 
was  thereupon,  in  due  form  of  law,  found,  declared,  and  ad- 
judged to  be  a  bankrupt ;  and  that  the  said  C.  D.,  being  so  as 
aforesaid  found,  declared,  and  adjudged  to  be  a  bankrupt,  was 
in  due  form  of  law  summoned  and  required  to  surrender  him- 
self to  the  said  commissioners  in  the  said  commission  named,  or 
the  major  part  of  them,  at  their  office,  [naming  the  place  of  it,] 
to  be  examined,  and  to  make  a  full  and  true  discovery  and  dis- 
closure of  the  estate  and  effects  according  to  the  directions  of 
the  act  of  Congress  aforesaid,  in  such  case  made  and  provided. 
And  the  jurors  aforesaid,  upon  their  oaih  aforesaid,  do  further 
present,  that  the  said  C.  D.  did  surrender  himself  to  the  said 
commissioners,  or  a  major  part  of  then),  and  did  sign  and  sub- 
scribe such  surrender,  and  submit  to  be  examined  from  time  to 
time,  by  and  before  the  said  commissioners,  or  the  major  part  of 
them,  touching  and  concerning  his  estate  and  effects,  according 
to  the  directions  of  the  act  of  Congress  aforesaid  ;  and  that  the 
said  C.  D.,  on  the  day  of  at  the    office    of  said 

commissioners,  they  the  said  commissioners  being  authorized  to 
take  the  examination  of  the  said  C.  D.  as  aforesaid,  in  order  that 
he  the  said  C.  D.  should  make  a  full  and  true  disclosure  and 
discovery  of  his  estate  and  effects,  agreeably  to  the  directions  of 

1  2  Chitt.  405. 


PERJURY.  207 

the  act  of  Congress  aforesaid,  and  then  and  there,  by  and  before 
said  commissioners,  was  duly  sworn  and  took  his  corporal  oath  to 
make  a  full  and  true  discovery  and  disclosure  of  his  estate  and  ef- 
fects aforesaid,  (diey  the  said  iMahlon  Dickerson,  Thomas  Cump- 
ston,  and  John  Sargent  then  and  there  having  sufficient  and  com- 
petent authority  to  administer  said  oaih  to  the  said  C.  D.  in  that 
behalf; )  and  that  the  said  C.  D.  being  so  sworn  as  aforesaid, 
not  regarding  tlie  act  of  Congress  aforesaid,  nor  the  punishment 
therem  provided  for  wilful  and  corrupt  peijury,  but  fraudulently 
and  wickedly  devising  to  avoid  and  suppress  a  full  and  true  dis- 
covery of  his  estate  and  effects,  and  to  subvert  the  trudi,  then 
and   there,    to  wit,  on  the  said  day  of  in  the  year 

aforesaid,  at  the  office  of  the  commissioners  aforesaid,  in  and 
upon  his  examination  aforesaid,  in  answer  to  an  interrogatory 
then  and  there  duly  put  and  administered  to  him  the  said  C.  D. 
in  substance  and  to  the  following  effect ;  that  is  to  say,  [here 
insert  the  interrogatory  verbatim,  as  put  to  the  said  C.  !>.,]  did 
falsely,  corruptly,  knowingly,  and  willully  depose  and  swL^ir  in 
substance  and  to  the  effect  following,  that  is  to  say,  [here  insert 
the  false  answer;  ]  whereas  in  truth  "and  in  fact,  the  said  C.  D. 
did  not  [here  negative  the  ansicer  in  all  that  is  false.']  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.,  in  manner  and  form  aforesaid,  upon  his  oaih  afore- 
said, by  his  own  act  and  consent,  and  of 'his  own  wicked  and 
corrupt  mind,  did  commit  wilful  and  corrupt  peijurv  ;  a<^ainst 
the  peace  and  dignity  of  the  said  United  Slates,  and  conir.-Try  to 
the  lorm  ol  the  act  of  the  Congress  of  the  United  States  in  such 
case  made  and  provided. 

273.  For  Perjury,  in  a  Complaint  before^  Magistrate. 

The  jurors  Sec,  upon  their  oath  present,  that  heretofore,  to 
wit,  on  the  day   of  he,  at  &cc.,  one  C.  D.  went   before 

E.  F.,  'Esq.,  one  of  the  justices  of  the  peace  in  and  for  the 
said  county  of  duly    and    legally   authorized   to  perform 

and  discharge  the  duties  of  said  office,  and  then  and  there 
complained  to  the  said  justice  in  due  form  of  law,  that  one 
G.  H.  [here  insert  the  complaint,]  which  said  complaint  of  the 
said  C.  D.,  on  the  said  day  of  at  said  in  the 

county  aforesaid,  came  on  to  be  heard,  examined  into,  and 
tried,  in  due  course  of  law,  before  the  said  E.  F.,  Esq.,  justice 
of  the  peace  as  aforesaid  ;  and  that  thereupon,  then  'and  there 
the  said  G.  H.  having  personally  appeared  before  the  said 
E.  F.,  Esq.,  such  justice  as  aforesaid,  to  answer  the  matters  and 


208  PERJURY. 

charges  contained  in  said  complaint ;  and  being  then  and  there 
personally  present,  and  having  heard  the  same  complaint  read 
to  him  by  the  said  E.  F.,  such  justice  as  aforesaid,  he  the  said 
G.  H.  did  then  and  there  plead  and  allege,  that  he  was  not 
guilty  of  the  said  offence  charged  upon  him  in  the  said  com- 
plaint; and  thereupon  the  said  E.  F.,  as  such  justice  as  afore- 
said, proceeded  to  hear  and  determine  the  matter  of  said  com- 
plaint in  the  presence  of  the  said  G.  H.  ;  and  that  at  and  upon 
the  said  hearing  of  the  said  matter  of  said  complaint  by  the  said 
E.  F.,  as  such  justice  as  aforesaid,  I.  J.  of  in  the  county 

of  laborer,  appeared  as  a  witness  in  support  of  said  com- 

plaint to  and  before  the  said  E.  F.,  Esq.,  and  then  and  there  as 
such  witness,  by  and  before  the  said  E.  F.,  Esq.,  such  justice  as 
aforesaid,  was,  in  due  form  of  law,  sworn  by  the  said  E.  F., 
Esq.,  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  relative  to  the  complaint  aforesaid,  then  and  there  in  hear- 
ing before  the  said  justice  ;  (he  the  said  E.  F.,  Esq.,  then  and 
there  having  sufficient  and  competent  authority  to  administer  an 
oath  to  the  said  I.  J.  in  that  behalf;)  and  that  the  said  I.  J., 
being  so  sworn  as  aforesaid,  and  being  then  and  there  lawfully 
required  to  depose  the  truth  in  a  proceeding  in  a  course  of  jus- 
tice, wickedly  devising  and  intending  to  subvert  the  truth,  and 
maliciously  and  wrongfully  intending  and  devising  to  cause  the 
said  G.  H.  to  be  convicted  of  the  offence  charged  and  alleged 
against  him  in  said  complaint,  then  and  there,  at  and  upon  the 
hearing  and  trial  of  the  said  complaint,  by  and  before  the  said 
E.  F.,  Esq.,  as  such  justice  as  aforesaid,  did,  as  such  witness  as 
aforesaid,  on  his  oath  aforesaid,  falsely,  maliciously,  wickedly, 
wilfully,  and  corruptly  say,  depose,  swear,  and  give  evidence  to 
and  before  the  said  E.  F.,  Esq.,  so  being  such  justice,  and  as 
such  justice  so  hearing  the  matter  upon  the  complaint  aforesaid, 
amongst  other  things,  in  substance  and  to  the  effect  following, 
that  is  to  say,  [here  insert  the  false  testimony  in  the  words  in 
which  it  was  given ;  ]  whereas,  in  truth  and  in  fact,  [here  go  on 
to  negative  the  testimony  in  the  words  in  ivhich  it  was  given.'] 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  I.  J  ,  then  and  there,  by  his  own  act  and  consent, 
and  in  manner  and  form  aforesaid,  did  knowingly,  falsely,  wick- 
edly, wilfullly,  and  corruptly  commit  wilful  and  corrupt  perjury  ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


PERJURY.  209' 


274.  For  Perjury,  in  filiating  a  Child,  before  a  Justice  of  the 

Peace} 

The  jurors  &c.,  upon  their  oath  present,  that  C.  D.,  of  said 
B.,  single  woman,  on  the  day  of  at  B.   aforesaid, 

in  the  county  aforesaid,  was  pregnant  with  child,  and  that  the 
said  child  was  likely  to  be  born  a  bastard,  and  to  be  chargeable 
to  the  said  town  of  B.,  in  the  county  aforesaid  ;  and  that  the  said 
C.  D.,  so  being  pregnant  with  child  as  aforesaid,  wickedly  and 
maliciously  intending  and  contriving,  not  only  to  deprive  one 
E.  F.  of  his  good  name,  fame,  and'reputaUon,  and  to  put  the 
said  E.  F.  to  great  trouble  and  expense,  but  also  falsely  to 
charge  the  said  E.  F.  with  begetting  her  with  child,  and  being 
the  father  of  said  child,  of  which  she  was  then  pregnant,  on  the 
day  of  at  &c.,  aforesaid,  in  her  own  proper  per- 

son, went  before  G.  H.,  Esq.,  then  being  one  of  the  justices  of 
the  peace  in  and   for  the  county  aforesaid,  duly  and  legally  au- 
thorized and  empowered  to  discharge  and  perform  the  duties  of 
said  office,  and  having  sufficient  and  competent  power  and   au- 
thority to  administer  an  oath,  and  take  the  examination  of  her 
the  said  C.  D.  hereinafter  mentioned,   then  and  there   the  said 
_C.  p.  was  duly  sworn  before  the  said  G.  H.,  Esq.,  being  such 
justice  as  aforesaid,  and  the  said  C.  D.  being  then  and  there 
lawfully  required  to  depose  the  truth  in  a  proceeding  in  a  course 
of  justice,   did  then  and  there,  upon  her  oath  aforesaid,  before 
the  said  G.  H.,  Esq.,  as  aforesaid,  wilfully,  and  of  her  own  free 
will  and   accord,  falsely,  wickedly,  and   corruptly,  and  with  a 
design  to  burden  the  said  E.  F.  with  the  maintenance  of  said 
bastard  child,  say,  depose,  swear,  and  give  in  her  examinadon, 
in  writing,  and  under  oath,  as  follows,  to  wit ;  "  the  volutary  ex- 
amination of  C.  D.  of  &tc.,  who  saith,"  [here  insert  the  examina- 
tion verbatim ;  ]  whereas,   in  truth  and  in  fact,  the  said  E.  F. 
was  not,  nor  is  the  father  of  said  child,  with  which  the  said 
C.  D.  was  then  pregnant,  nor  of  any  other  child  of  the  body  of 
the  said  C.  D.     And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  C.  D.,  in  manner  and  form 
aforesaid,  _  wickedly,  wilfully,  falsely,  and  corruptly  did  commit 
wilful  perjury ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


'  2  Chitt.  438  ;  4  Went.  232 ;  Stark.  515,  note  {a.) 
27 


210  PERJURY. 


275.  For  Perjury^  in  giving  Evidence  on  the  Trial  of  an  Issue 
on  an  Indictment  for  Perjury.^ 

The  jurors   he,  upon  their   oath    present,  that    at    the    Su- 
preme judicial  Court  of  the  said  Commonwealth,  begun   and 
holdcn  at  B.,  within  and  for   the  county  of    S.,   on    the    first 
Tue^^day   of  November,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty,  before  Isaac  Parker,  Esq.,  then  chief 
justice  of  the  said   court,  a  certain  issue,  in  due  manner  joined 
in   the   said  court,  between  the   Commonwealth  aforesaid   and 
one  C.  D.,  upon   a  certain  indictment  then  depending  against 
the  said  C.  D.  for  wilful  and  corrupt  perjury,   came  on  to  be 
tried,  and  was  then  and  there,  in  due  form  of  law,  tried,   by   a 
certain  jury  of  the  country,  in  due  manner  returned,  impannelledy 
and  sworn  for  that  purpose  ;  and   that   at  and  upon  the  trial  of 
said  issue,  E.  F.,  late  of  B.,  in   the  county  aforesaid,  laborer, 
did  then  and  there  appear,  and  was  produced  as  a   witness  for 
and  on  behalf  of  the   said  Commonwealth,  and   against  the  said 
C.  D.,  upon  the  trial  of  the  said  issue,  and  the  said  E.  F.  was 
then    and  there  duly  sworn,  as  such  witness  as  aforesaid,  before 
the  said   Isaac  Parker,  Esq.,  then  chief  justice  as  aforesaid,  that 
the  evidence  which  he  should  give  to  the  court  and  jury,  between 
the  said  Commonwealth  and  the  said   C.  D.,  the  defendant,  on 
the  issue  then  depending,  should   be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  (the   said   Isaac  Parker,  Esq.,  as  the 
said  Chief  Justice  of  said  court,  then  and  there   having  sufficient 
and  competent  power  and  authority  to  administer  the  said  oath  to 
the  said  E.  F.  in  that  behalf;)    and   the  said  E.   F.,  being  so 
sworn  as  aforesaid,   it  then   and  there,  upon  the  trial  of  the  said 
issue,  became  and  was  a  material  inqury,  whether  [Acre  state  the 
several  material  questions.J^     And    the  jurors    aforesaid,    upon 
their  oath  aforesaid,  do  further  present,  that  the  said  E.  F.,  ma- 
liciously and  corruptly  intending   to  injure  and  aggrieve  the  said 
C.  D.,  and  to  cause  and  procure  him  to  be  convicted  of  the  wil- 
ful and  corrupt  perjury,  whereof  he  then  stood  indicted  as  afore- 
said, and  to  subject  him  to  the  pains,  penalties,  and  punishments 
of  the  laws  of  this  Commonwealth  inflicted  on  persons  convicted 
of  that  crime,  and  being  then  and  there  lawfully  required   to  de- 
pose the  truth  in   a  proceeding  in  a  course  of  justice,  then  and 
there,  on  the  trial  aforesaid   of  the  said  issue,  upon  his  oath 
aforesaid,  before  the  said  Isaac  Parker,  Esq.,  Chief  Justice  as 


1  2  Chitt.  452,  453,  note  (n);  4  Went.  275,  and  6  Went.  396. 


PERJURY.  211' 

aforesaid,  having  such  competent  authority  to  administer  such 
oath  as  aforesaid,  falsely,  wickedly,  knowingly,  wilfully,  and 
corruptly  did  say,  depose,  swear,  and  give  evidence,  to  the  said 
court  and  jury,  amongst  other  things,  in  substance  and  to  the 
effect  following,  that  is  to  say,  \_here  set  out  the  emdence  ;  ] 
whereas,  in  truth  and  in  fact,  the  said  C.  D.  did  not  [here 
assign  the  perjury,  by  negativing  the  false  evidence  given  by  the 
withess.']  And  so  tlie  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  E.  F.  falsely,  wickedly,  wilfully,  and  cor- 
ruptly, by  his  own  voluntary  ^ct  and  consent,  and  of  his  own 
wicked  mind  and  disposition,  did  then  and  there,  in  manner 
and  form  aforesaid,  commit  wilful  and  corrupt  perjury  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

276.  For  Perjury,  on  a  Trial  in  the  Supreme  Judicial  Court  in 
a  Civil  Action. 

The  jurors  he,  upon  their  oath  present,  that  iieretofore,  to 
wit,  at  the  Supreme  Judicial  Court,  begun  and  holden  at  B., 
within  and  for  the  said  county  of  S.,  on  the  Tuesday  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
twenty  before    I.    P.,    then    being  Chief   Justice    of  the 

same  court,  a  certain  issue  duly  joined  in  the  said  court,  between 
one  C.  D.  and  one  E.  F.,  in  a  certain  plea  of  trespass,  came  on 
to  be  tried  in  due  form  of  law,  and  was  then  and  there  tried  by 
a  certain  jury  of  the  country,  duly  summoned,  impannelled,  and 
sworn  between  the  parties  aforesaid  ;  and  that,  upon  the  said 
trial,  G.  H.  of  said  B.,  yeoman,  appeared  as  a  witness  on  the 
behalf  of  the  said  E.  F.,  the  defendant,  and  was  duly  sworn, 
and  took  his  oath  before  the  said  I.  P.,  Chief  Justice  as  afore- 
said, to  speak  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  touching  the  matters  in  issue  on  the  said  trial ;  he  the  said 
I.  P.,  Chief  Justice  as  aforesaid,  having  sufficient  and  competent 
power  and  authority  to  administer  the  said  oath  to  the  said  G.  H.  in 
that  behalf;  and  that  at  and  upon  the  said  trial,  certain  questions 
became  and  were  material,  in  substance  as  follows,  that  is  to 
say,  [here  state  the  material  questions ;  ]  and  that  the  said  E.  F., 
being  so  sworn  as  aforesaid,  and  being  then  and  there  lawfully 
required  to  depose  the  truth  in  a  proceeding  in  a  course  of  jus- 
tice, at  and  upon  the  said  trial  at  the  court  aforesaid,  then  and 
there  falsely,  wilfully,  voluntarily,  and  corruptly  did  say,  depose, 
and  swear,  among  other  things,  in  substance  and  to  the  effect 
following,  that  is  to  say,  [here  state  the  evidence  with  proper  inu- 


212  PERJURY. 

endoes ;  ]  whereas,  in  truth  and  in  fact,  [here  assign  the  perjury 
by  negativing  the  evidence.']  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  G.  H.,  in  manner  and 
form  aforesaid,  did  commit  wilful  and  corrupt  perjury  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in   such  case  made  and  provided. 

277.  For  Perjury,  on  the  Trial  of  an  Issue  in  an  Action  of  As- 
sumpsit.^ 

Tlie  jurors  Sic,  upon  their  oath  present,  that  at  the  Supreme 
Judicial  Court  of  said  Commonweahh,  begun  and  holden  at 
within   and   for  the   county  of  on   the  Tuesday  of 

in  the  year  of  our  Lord  he.  before  I.  P.,  Esq.,  then 
being  the  Chief  Justice  of  the  said  court,  a  certain  issue  duly 
joined  in  the  said  court,  between  one  C.  D.  and  one  E.  F.,  in  a 
certain  plea  of  the  case  upon  promises,  alleged  by  the  said  C.  D. 
to  have  been  made  by  him  the  said  E.  F.  and  not  performed,  in 
which  the  said  C.  D.  was  plaintiff,  and  the  said  E.  F.  was  de- 
fendant, came  on  to  be  tried  in  due  form  and  course  of  law,  and 
was  then  and  there  tried  by  a  certain  jury  of  the  country  in  that 
behalf,  duly  summoned,  impannelied,  and  sworn  between  the  par- 
ties aforesaid  ;  and  that  upon  the  trial  of  the  said  issue  so  joined 
between  the  parties  aforesaid,  G.  H.,  late  of  in  the  county 

of  yeoman,  appeared  as  a  witness  for  and  on  behalf  of 

the  said  C.  D.,  the  plaintiff,  in  the  plea  abovementioned,  and 
was  duly  sworn  and  took  his  oath  before  the  said  I.  P.,  Chief 
Justice  as  aforesaid  of  the  said  Supreme  Judicial  Court,  to 
speak  the  truth,  the  whole  truth,  and  nothing  but  the  truth, 
touching  and  concerning  the  matters  in  question  in  the  said 
issue,  he  the  said  I.  P.  being  then  Chief  Justice  as  aforesaid, 
then  and  there  having  competent  authority  to  administer  the  said 
oath  to  the  said  G.  H.  in  that  behalf;  and  that  upon  the  trial  of 
the  said  issue,  so  joined  between  the  parties  aforesaid,  certain 
questions  then  and  there  became  and  were  material,  that  is  to 
say,  [here  state  the  material  questions;]  and  the  said  G.  H., 
being  so  sworn  as  aforesaid,  and  then  and  there  being  lawfully  re- 
quired to  depose  the  truth  in  a  proceeding  in  a  course  of  jus- 
tice, falsely,  wickedly,  wilfully,  corrupdy,  and  maliciously  con- 
triving and  intending,  as  much  as  in  him  lay,  to  prevent  justice 
and  pervert  the  due  course  of  law,  and  to  cause  a  verdict  to  pass 
against  the  said  E.  F.  on  the  trial  of  the  said  issue,  and  thereby 


Stark.  521. 


PERJURY.  213 

to  subject  him  to  the  payment  of  sundry  heavy  costs,  charges, 
and  expenses,  then  and  there  falsely,  wickedly,  wilfully,  and 
corruptly,  and  by  his  own  act  and  consent,  did  say,  depose, 
swear,  and  give  evidence,  among  other  things,  on  the  trial  afore- 
said to  and  before  the  said  jurors,  so  sworn  to  try  the  said  issue 
as  aforesaid,  and  to  and  before  the  Chief  Justice  aforesaid,  in 
substance  and  to  the  effect  following,  that  is  to  say,  [here  set 
out  the  false  testimony  with  proper  inuendoes  ;'\  whereas,  in  truth 
and  in  fact,  [here  assign  the  jyerjury  by  negativing  the  false  tes- 
timony.^ And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  G.  H.  then  and  there  falsely,  wickedly, 
wilfully,  and  corruptly,  and  by  his  own  voluntary  act,  and  of  his 
own  wicked  mind  and  disposition,  in  manner  and  form  aforesaid, 
did  commit  wilful  and  corrupt  perjury  ;  in  evil  example  to  others 
to  offend  in  like  case,  against  the  peace  of  the  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

278.  For  Perjury,  in  taking  the  Poor  Debtors^  Oath,  8fc} 

The  jurors  &:c.,  upon  their  oath  present,  that  by  the  conside- 
ration of  the  justices  of  the  Circuit  Court  of  Common  Pleas  for 
the  ]Middle  Circuit,  holden  at  Boston,  within  and  for  the  county 
of  Suffolk,  on  the  last  Tuesday  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twelve,  one  S.  C.  A.  and 
one  J.  B.  recovered  judgment  against  J.  T.  of  M.,  in  the  county 
of  VV.  aforesaid,  trader,  for  the  sum  of  four  hundred  and  fifty- 
seven  dollars  and  seven  cents,  damage,  and  twenty-five  dollars 
and  fifteen  cents  costs  of  suit;  and  that  afterwards,  to  wit,  on 
the  fifteenth  day  of  January,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  thirteen,  execution  of  said  judgment  then 
remaining  to  be  done,  they  the  said  S.  C.  A.  and  J.  B.  pur- 
chased out  their  writ  of  execution  from  the  clerk's  office  of  the 
said  Circuit  Court  of  Common  Pleas  for  the  Middle  Circuit, 
directed  to  the  sheriff  of  the  said  county  of  W.  or  his  deputy, 
and  commanding  them  or  either  of  them,  that  of  the  goods,  chat- 
tels, or  lands  of  the  said  J.  T.,  within  their  precinct,  they  cause 
to  be  paid  and  satisfied  unto  the  said  S.  C.  A.  and  the  said 
J.  B.,  at  the  value  thereof  in  money,  the  aforesaid  sums,  being 
four  hundred  and  eighty-two  dollars  and  twenty-two  cents,  in  the 
whole,  with  twenty-five  cents  more  for  that  writ,  and  thereof  also 
to  satisfy  himself  for  his  own  fees  ;  and  for  want  of  goods,  chat- 


'  2  Mass.  Laws,  Stat.  1816,  c.  55. 


214  PERJURY. 

tels,  or  lands,  of  the  said  J.  T.,  to  be  by  said  T.  shown  unto 
him  to  the  acceptance  of  the  said  S.  C.  A.  and  J.  B.,  or  found 
within  his  said  precinct,  to  satisfy  the  sums  aforesaid,  tlie  said 
sheriff  or  iiis  deputy  was  therein  commanded  to  take  the  body  of 
the  said  J.  T.,  and  him  commit  to  the  gaol  in  W.,  in  the  said 
county  of  W.,  and  detain  in  his  custody  within  the  snid  gaol, 
until  he  pay  the  full  sums  abovementioncd,  with  his  the  said 
sheriff's  or  his  deputy's  fees,  or  that  he  be  discharged  by  the 
said  S.  C.  A.  and  J.  B.,  the  creditors,  or  otherwise  by  order  of 
law;  and  the  said  sheriff  or  his  deputy  was  therein  commanded 
to  make  return  of  said  writ,  with  his  doings  therein,  into  the  said 
Circuit  Court  of  Common  Pleas,  to  be  holden  at  B.,  witl)in  the 
county  of  S.  aforesaid,  on  the  fourth  Tuesday  of  March  then 
next;  and  the  said  S.  C.  A.  and  J.  B.  then  and  there  delivered 
the  same  writ  of  execution  to  one  A.  B.,  then  and  ever  since 
one  of  the  deputy  sheriffs  for  the  said  county  of  W.,  to  be  by 
him  served  in  due  course  of  law  ;  and  that  the  said  A.  B.,  dep- 
uty sheriff  as  aforesaid,  afterwards,  to  wit,  on  the  eighteenth  day 
of  JNIarch,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirteen,  and  before  the  said  writ  of  execution  was  return- 
able, for  want  of  goods,  chattels,  or  lands  of  the  said  J.  T., 
found  within  his  precinct,  or  shown  to  him  by  said  J.  T.,  arrested 
the  body  of  the  said  J.  T.,  and  him  committed  to  the  Common- 
wealth's gaol  in  W.,  in  the  county  of  W.  aforesaid,  as  by  the 
said  writ  of  execution  he  was  commanded.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
afterwards,  to  wit,  on  the  eighteenth  day  of  March,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  eighteen,  he  the 
said  J.  T.  then  standing  committed  as  aforesaid,  by  force  of  the 
writ  of  execution  aforesaid,  then  and  there  did  complain,  by  a 
writing  under  his  hand,  to  N.  H.,  under  keeper  of  the  said  gaol 
in  W.,  in  the  county  of  W.  aforesaid,  that  he  had  not  estate 
sufficient  to  support  himself  in  prison,  and  requested  the  said 
N.  H.  to  make  application  to  some  justice  of  the  peace  in  said 
county  of  W.  for  a  notification  to  his  said  creditors,  at  whose 
suit  he  was  committed,  signifying  his  desire  to  take  the  benefit  of 
the  law  provided  in  behalf  of  poor  prisoners  ;  and  thereupon  the 
said  N.  H.,  the  under  keeper  of  the  gaol  aforesaid,  did  then  and 
there  apply  in  writing  to  A.  L.,  Esq.,  one  of  the  justices  of  the 
peace  within  and  for  the  said  county  of  W.,  therein  signifying  the 
complaint  aforesaid  of  the  said  J.  T. ;  and  thereupon,  on  the 
said  eighteenth  day  of  March,  in  the  year  last  aforesaid,  the  said 
A.  L.  made  out  a  notification  in  writing,  under  his  hand  and 
seal,  directed  to  the  said  S.  C.  A.  and  J.  B.,  in  which  he  signi- 


PERJURY.  215 

fied  to  them,  the  creditors  aforesaid,  the  desire  of  the  said 
J.  T.  to  take  die  privilege  and  benefit  allowed  in  and  by  "  an 
act  entitled  an  act  for  the  relief  of  poor  prisoners  committed  by 
execution  for  debt,"  and  therein  notified  them  of  the  time  and 
place  appointed  for  the  intended  caption  of  the  oath  prescribed 
by  the  statute  in  such  case  made  and  provided  ;  which  nofifica- 
tion  was  then  and  there,  on  the  day  and  year  last  aforesaid,  duly 
served  on  the  said  S.  C.  A.  and  said  J.  B.,  thirty  days  before 
the  time  appointed  for  the  caption  of  the  oath  aforesaid.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  furdier  pre- 
sent, that  afterwards,  to  wit,  on  the  twenty-second  day  of  April, 
in  the  year  last  aforesaid,  at  the  gaol  aforesaid,  in  the  county  of 
W.  aforesaid,  (being  the  time  and  place  appointed  in  said  notifi- 
cation for  the  caption  of  the  oath  aforesaid,)  A.  L.  and 
W.  C.  W.,  Esqrs.,  two  of  the  justices  of  the  peace  within 
and  for  the  said  county  of  W.,  each  of  whom  was  then  of  the 
quorum,  and  disinterested  and  not  related  either  to  the  said 
creditors  or  the  debtor,  did  assemble  and  call  before  them  the 
said  J.  T.  for  the  purpose  of  hearing  and  examining  the  said 
J.  T,,  and  administering  to  him  the  oath  aforesaid  ;  and  that  he 
the  said  J.  T.  did  then  and  there  appear  before  the  said  two  last 
mentioned  justices,  (they  the  same  two  justices  of  the  quorum 
then  and  there  having  sufficient  and  competent  power  and  au- 
thority to  administer  the  said  oath  to  the  said  J.  T.  in  that 
behalf,)  and  that  he  the  said  J.  T.,  wickedly  intending  by  color 
and  pretext  of  the  acts  and  statutes  of  the  said  Commonwealth 
to  deceive  and  defraud  the  said  S.  C.  A.  and  J.  B.,  his  credi- 
tors aforesaid,  of  their  just  debt  aforesaid,  then  and  there,  to  wit, 
on  the  twenty-second  day  of  April,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  eighteen,  at  VV.  aforesaid,  in  the 
county  of  W.  aforesaid,  at  the  gaol  aforesaid,  before  the  two 
justices  of  the  quorum  aforesaid,  falsely,  wilfully,  maliciously, 
and  corruptly  did  swear,  depose,  and  declare,  on  oath,  in  the 
words  following,  to  wit,  [liere  insert  the  oath;Y  and  that  after 
the  taking  of  the  said  oath,  the  two  justices  of  the  quorum  afore- 
said made  their  certificate  thereof  to  the  said  under  keeper  of  the 
gaol  aforesaid,  who  thereupon  then  and  there  discharged  the 
said  J.  T.  from  the  gaol  aforesaid  to  go  at  large ;  whereas,  in 
truth  and  in  fact,  after  the  commencement  of  the  said  suit  against 
the  said  J.  T.  by  the  said  S.  C.  A.  and  J.  B.,  and  before  the 
taking  of  the  said  oath,  and  during  the  confinement  of  the  said 
J.  T.  on  the  execution  aforesaid,  to  wit,  on  the  sevei>teenth  day 

'  See  2  Mass.  Laws,  Stat.  1816,  c.  55,  for  the  form  of  the  oath. 


216  PERJURY. 

of  April,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirteen,  he  the  said  J.  T.  conveyed  away  a  large  and  val- 
uable real  estate,  lying  in  M.,  in  the  county  aforesaid,  consisting 
often  acres  and  one  hundred  and  thirteen  rods  of  land,  to  one 
A.  T.,  his  brother,  with  intent  to  secure  the  same  to,-  and  in 
trust  for  his  own  use,  and  to  defraud  his  just  creditors  thereof; 
and  which  said  estate  and  the  full  value  thereof,  after  his  taking 
the  oath  aforesaid,  he  received  to  his  own  use,  and  that  he  the 
said  J.  T.,  at  the  time  of  his  taking  the  oath  aforesaid,  had  a 
number  of  outstanding  good  and  bond  Jide  debts  due  to  him  on 
notes  and  accounts,  and  other  personal  estate  in  his  possession 
and  control,  and  which,  after  his  taking  the  oath  aforesaid,  he 
collected  and  ecovered  to  his  own  use  and  benefit,  to  the 
amount  of  fourrhundred  dollars.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  J.  T.,  in  man- 
ner and  form  aforesaid,  on  the  said  twenty-second  day  of  April, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  eighteen, 
at  W.  aforesaid,  in  the  county  aforesaid,  on  his  oath  aforesaid, 
before  the  said  two  justices  of  the  quorum  aforesaid,  by  his  own 
act  and  consent,  and  of  his  own  wicked  and  corrupt  mind  and 
disposition,  in  manner  and  form  aforesaid,  falsely,  wickedly, 
wilfully,  and  corruptly,  did  commit  wilful  and  corrupt  perjury  ; 
in  evil  and  pernicious  example  to  others  in  like  case  to  offend, 
against  the  peace  of  the  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.^ 


>  This  precedent  is  taken  fiom  an  indictment  drawn  by  the  present  Attorney 
General  of  Massachusetts. 


SUBORNATION  OF  PERJURY.  217 


FORMS  OF  INDICTMENTS   FOR   SUBORNATION 
OF  PERJURY. 

279.    For  Subornation  of  Perjury,  ly  procuring  a   Woman  to 
swear  a  Bastard  Child  upon  an  innocent  Man} 

The  jurors  &c.,   upon  their  oath  present,  that  one  C.  D.,  of 
&tc.,  single  woman,  on  the  clay  of  now  last  past,  at 

B.  aforesaid,  was  pregnant  with  child,  and  that  said  child  was 
likely  to  be  born  a  bastard,  and  be  ciiargeable  to  the  said  town 
of  B.  in  the  said  county  of  S.  ;  and  that  on  the  said  day 
of  aforesaid,  at  B  aforesaid,  E.  F.,  of  B.,  in  the  county 
of  S.,  yeoman,  being  a  person  of  an  evil  mind  and  disposition, 
and  wickedly  and  maliciously  contriving  and  intending  to  deprive 
one  G.  H.,  not  only  of  his  good  name,  fame,  and  reputation,  and 
to  put  him  to  great  trouble  and  expense,  but  also  to  cause  the 
said  G.  H.  to  be  falsely  charged  with  begetting  the  said  C.  D. 
with  child,  and  with  being  the  father  of  said  child  wiih  which 
the  said  C.  D.  was  then  and  there  pregnant  as  aforesaid,  did 
falsely,  wickedly,  knowingly,  wilfully,  and  corruptly  solicit, 
suborn,  and  procure  the  said  C.  D.  to  go  before  I.  J.,  Esq., 
ti  en  and  still  one  of  the  justices  of  the  peace  in  and  for  the 
said  county  of  S.,  duly  and  legally  empowered  and  qualified  to 
discharge  and  perform  the  duties  of  said  office,  and  make  oath 
that  the  said  G.  H.  was  the  father  of  the  said  chih!,  with  which 
she  was  then  pregnant.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  in  consequence,  and  by  the 
means,  encouragement,  and  effects  of  the  said  wicked  and  cor- 
rupt subornation  and  procurement  of  the  said  E.  F.,  she  the  said 

C.  D.  afterwards,  to  wit,  on  the  same  day  of  in  the 
year  aforesaid,  at  said  B.,  in  the  county  aforesaid,  did  go  in  her 
proper  person  before  the  said  I.  J.,  Esq.,  being  such  justice  as 
aforesaid,  and  having  then  and  there  sufficient  and  competent 
power  and  authority  to  administer  an  oath  and  take  the  examina- 
tion of  the  said  C.  D.  hereinafter  mentioned  ;  and  the  said 
C.  D.  was  then  and  there  sworn  before  the  said  I.  J.,  Esq.; 
and  the  said  C.  D.  being  so  sworn  as  aforesaid,  and  being  then 
and  there  lawfully  required  to  depose  the  truth  in  a  proceeding 
in  a  course  of  ju:  tice,  by  the  means  and  in  consequence  of 
the  said  wicked  solicitation,  subornation,  and  procurement  of 
the  said   E.   F.,   did    then  and  there,  upon  her  oath' aforesaid, 


1  See  similar  precedents  2  Chitt.  476;  2  Stark.  529;  do.  C.  A.  213. 

28 


218  SUBORNATION  OF  PERJURY. 

before  the  said  I.  J.,  being  such  justice  as  aforesaid,  falsely, 
wickedly,  wilfully,  and  corruptly  say,  depose,  and  swear,  and 
give  in  her  examination,  in  wiiling,  and  under  oath,  as  follows, 
[Acre  copy  and  insert  the  examination  verbatim,  with  proper 
inuendoes;']  whereas,  in  truth  and  in  fact,  the  said  E.  F.,  at 
the  time  of  soliciting,  suborning,  and  procuring  the  said  C  D. 
corru()tly  and  falsely  to  swear  as  aforesaid,  well  knew  that  the 
said  G.  H.  was  not  the  father  of  the  said  child,  with  which  she 
was  then  pregnant  as  aforesaid.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  E.  F.,  then  and 
there,  in  manner  and  form  aforesaid,  did  falsely,  knowingly, 
wilfully,  and  corruptly  commit  subornation  of  perjury,  by  wil- 
fully, falsely,  knowingly,  and  corruptly  suborning  and  procuring 
the  said  C.  D.  to  commit  wilful  and  corrupt  perjury,  in  and  by 
her  oath  aforesaid,  in  manner  and  form  aforesaid  ;  against  the 
peace  and  dignity  of  the  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

280.  For  endeavouring  to  suborn  a  Person  to  give  Evidence  on 
the  Trial  of  an  Issue  in  the  Supreme  Judicial  Court} 

The  jurors  &£c.,  upon  their  oath  present,  that  at  the  Supreme 
Judicial'  Court,  begun  and  holden  at  B.,  within  and  for  the 
county  of  S.,  on  the  Tuesday  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  two,  before  Isaac  Parker, 
Esq.,  then  the  Cliief  Justice  of  the  said  court,  a  certain  issue 
duly  joined  in  the  said  court  between  one  C.  D.  and  one  E.  F. 
in  a  certain  plea  of  trespass,  wherein  it  was  alleged,  in  substance, 
that  the  said  E.  F.  had,  with  force  and  arms,  assaulted,  beat, 
bruised,  wounded,  and  ill-treated  the  said  C.  D.,  in  which  the 
said  C.  D.  was  plaiutitT,  and  the  said  E.  F.  was  defendant, 
came  on  to  be  tried  in  due  form  of  law,  and  was  then  and  there 
tried  by  a  certain  jury  of  the  country  in  that  behalf  duly  sum- 
moned, taken,  impannelled,  and  sworn  between  the  parties  afore- 
said ;  and  that  before  the  trial  of  the  said  issue,  and  during  the 
time  the  same  was  pending,  to  wit,  on  the  day  of 

at  B.  aforesaid,   in   the  county  aforesaid,  G.  H.  of  in  the 

county  aforesaid,  grocer,  wickedly  contriving  and  intending,  as 
much  as  in  him  lay,  to  prevent  justice  and  pervert  the  due  course 
of  law,  and  intending  unjustly  to  aggrieve  the  said  E.  F.,  the  de- 

1  Cro.  C.  C.  5S7,  (6th  Ed.)  This  precedent  is  drawn  on  the  statute  of 
Massachusetts  of  1812,  c.  143,  but  it  concludes  also  at  common  law.  See 
also  2  Chitt.  482,  which  cites  the  above  precedent  from  Cro.  C.  C.  587, 
(6th  Ed.) 


SUBORNATION  OF  PERJURY.  219 

fendant  above  named,  and  wickedly  to  cause  and  procure  the 
said  E.  F.  to  be  found  guilty  of  the  premises  alleged  against 
him  in  the  said  issue,  and  thereby  to  subject  him  to  the  payment 
of  large  sums  of  money  for  the  payment  of  damages  and  costs  to 
be  recovered  against  him  in  the  suit  aforesaid,  then  and  there,  on 
the  same  day  and  year  last  aforesaid,  at  B.  aforesaid,  in  the  said 
county  of  S.,  did  unlawfully  and  wickedly  solicit,  instigate,  and, 
as  much  as  in  him  lay,  wilfully  and  corruptly  endeavour  to  per- 
suade and  procure  one  I.  J.  to  be  and  appear  as  a  witness  on  the 
part  and  behalf  of  the  said  C.  D.,  the  plaintiff  aforesaid,  at  the 
trial  of  said  issue,  so  as  aforesaid  joined,  and,  upon  the  same 
trial,  to  commit  wilful  and  corrupt  perjury,  by  falsely  swearing 
and  giving  in  evidence  to  and  before  the  jurors  of  the  jury  afore- 
said, so  sworn  between  the  parties  aforesaid  to  try  the  said  issue, 
in  substance  and  to  the  effect  following,  that  is  to  say,  [/tez-e  in- 
sert the  evidence  which  the  party  was  instigated  to  give,  ivith 
proper  inuendoes  if  necessary ;  ]  whereas,  in  truth  and  in  fiict, 
[here  assign  the  perjury  intended  to  be  committed,  by  negativing 
the  false  evidence  intended  to  be  given  ;  ]  in  inanifest  subversion 
of  justice,  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

281.  For  persuading  a  Witness  not  to  give  Evidence  against  a 
Person  charged  with  an  Offence  before  the  Grand  Jury} 

The  jurors  &,c.,  upon  their  oath  present,  that  heretofore,  to 
wit,  on  Sic,  A.  B.,  of  Stc,  \herc  state  the  authority  of  the  gov- 
ernment by  which  the  attendance  of  the  witness  was  compelled, 
whether  a  summons  or  a  recognisance.^  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  at  the 
time  of  taking  said  recognisance,  [or  the  service  of  said  sum- 
mons, as  the  case  may  ie,]  and  from  then  until,  and  upon  the 
said  day  of  therein  mentioned,  the  evidence  of  the 

said  A.  B.  was  material  and  necessary  to  have  been  given  in 
before  the  said  grand  jury,  on  the  subject-matter  then  to  be 
heard  and  considered  by  them  ;  which  said  grand  jury  were 
then  and  there  duly  and  legally  convened,  on  that  behalf,  and 
vvere  legally  authorized  and  had  competent  authority  to  consider 
and  decide  upon  the  subject-matter  then  and  there,  by  them  to 

'  This  is  an  offence  at  common  law,  for  which  see  Hawk.  b.  1,  c.  21,  §  15. 
The  meie  attempt  to  stifle  evidence,  though  it  does  not  succeed,  is  crimiaal. 
6  East,  464  ;  2  East,  5,  21,  22  ;  2  Str.  904  ;  2  Leach,  925. 


220  SUBORNATION  OF  PERJURY. 

be  heard  ;  and  that  at  the  said  term  of  said  court,  [here  describe 
the  court,^  a  bill  of  indictment  was  prepared  against  the  said 
A.  B.  for  the  offence  aforesaid.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  C.  D.,  of  &:c.,  con- 
triving and  intending  the  due  course  of  jusiice  to  obstruct  and 
impe(]e,   on  at  unhnvfully   and    unjustly   dissuaded, 

hindered,  and  prevented  the  said  A.  B.  from  appearing  before 
the  justices  of  said  court,  and  before  the  said  grand  jury,  to  give 
evidence  before  the  said  grand  jury  on  the  bill  of  indictment 
preferred  as  aforesaid   against  the  said  and  that  in  con- 

sequence thereof  the  said  A.  B.  did  not  appear  and  give  evi- 
dence according  to  his  duty  in  that  respect ;  against  the  peace 
and  dignity  of  the  Commonwealth  aforesaid. 

282.  For   Subornation  of  Perjury,  on   a   Trial  for  Robbery, 
iclierc  the  Prisoner  set  up  an  Alibi.^ 

The  jurors  &,c.,  upon  their  oath  present,  that  at  the  Supreme 
Judicial  Court  of  said  Commonwealth,  holden  at  on 

before  the  justices  of  said  Supreme  Judicial  Court,  a  certain  in- 
dictment was  presented  and  returned  in  due  course  of  law  by  the 
grand  jury  for  the  said  county  against  one  A.  B.,  in  the  form  fol- 
lowing, to  wit,  [here  insert  the  indictment  ;  ]  and  that  afterwards 
such  proceedings  were  had,  as  that  the  said  A.  B.  was  duly 
and  legally  arrested  and  brought  into  said  court,  and  being  duly 
and  legally  arraigned  upon  said  indictment,  pleaded  to  the  same 
that  he  was  not  guilty  thereof;  upon  which  issue,  such  proceed- 
ings were  had,  that  afterwards,  to  wit,  at  the  said  Supreme  Ju- 
dicial Court,  so  held  as  aforesaid,  a  trial  was  had  and  held  by 
the  jury  aforesaid,  between  the  said  Commonwealth  and  the  said 
A.  B.  upon  the  said  indictment ;  upon  which  said  trial,  evidence 
was  given  on  behalf  of  said  Commonwealth  against  the  said 
A.  B.  that  the  felony  and  robbery,  in  the  said  indictment  speci- 
fied and  charged,  was  committed  by  the  said  A.  B.,  on 
at  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 

further  present,  that  C.  D.,  late  of  being   a  person  of  an 

evil  and  wicked  mind  and  disposition,  and  devising  and  intending 
as  much  as  in  him  lay,  to  pervert  the  due  course  of  law  and  jus- 
tice, and  to  cause  and  procure  the  said  A.  B.  to  be  entirely 
acquitted  of  the  said  felony  and  robbery  charged  on  him  by  the 
said  indictment,   and  to  escape  unpunished  for  the  same,  did, 


>  2  Chitt.  478,  479. 


PIRACY.  221 

before  the  said  trial,  to  wit,  on  at  unlawfully  and 

wickedly  solicit,  incite,  and  endeavour  to  persuade  one  E.  F.  to 
appear  as  a  witness  on  the  said  trial,  so  as  aforesaid  had,  for  and 
on  behalf  of  the  said  A.  B.,  and  on  the  said  trial,  falsely  to 
depose,  say,  and  give  evidence  upon  bis  oath  to  the  court  and 
jury  aforesaid,  that  the  said  A.  B.  [Aere  insert  the  evidence  given 
by  the  said  E.  F.  to  prove  the  alibi ;  ]  whereas  in  truth  and  in 
fact,  the  said  E.  F.  did  not  [Aere  negative  the  testimony  given  by 
the  said  E.  F. ;  ]  and  whereas  in  trudi  and  in  fact,  at  the  time 
when  the  said  C.  D.  did  so  solicit,  invite,  and  endeavour  to 
persuade  the  said  E.  F.  to  give  such  evidence  upon  his  oath  as 
aforesaid,  he  the  said  C.  D.  well  knew  that  the  said  E.  F.  would 
not  give  his  evidence  according  to  the  truth,  and  that  the  same 
evidence  so  to  be  given,  was  false,  feigned,  and  altogether  fictitious  ; 
to  the  evil  example  to  others  in  like  case  to  offend,  against  the 
peace  and  dignity  of  the  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


PIRACY. 

283.  Against  several,  for  piratically  attacking,  talcing,  and  car- 
rying away  a  Ship,  with  Goods  ^-c.  on  board} 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  late  of 
said  B.,  mariner,  [and  eight  others,  ivith  the  like  additions,^  on 
upon  the  high  sea,  out  of  the  jurisdiction  of  any  particu- 
lar State,  with  force  and  arms,  did  piratically  and  feloniously  set 
upon,  board,  break,  and  enter  a  certain  merchant  ship  called  the 
Governor  Strong,  then  being  a  ship  belonging  exclusively  to  cer- 
tain citizens  of  the  United  States,  to  the  jurors  aforesaid  as  yet 
unknown  ;  and  then  and  there  piratically  and  feloniously  did 
assault  certain  mariners,  whose  names  to  the  jurors  aforesaid 
are  also  as  yet  unknown,  in  the  same  ship  then  and  there  being  ; 
and  did  then  and  there  upon  the   high   sea  aforesaid,  out  of  the 


'  3  Chitt.  1130,  1131;  Cro.  C.  A.  316;  2  Stark.  455.  The  indictment  from 
which  this  precedent  was  taken  was  used  against  Captain  Kidd  and  others. 
5  State  Trials,  287 ;  3  Chitt.  1131,  note  (&.)  See  Statute  of  United  States, 
April  30,  1819,  §  8.     Gordon's  Dig.  Art.  364,  p.  716,  note  (6.) 


222  I'lUACY. 

jurisdiction  of  any  particular  State,  piratically  and  feloniously  put 
the  said  mariners  in  great  fear  and  bodily  danger  of  their  lives ; 
and  the  said  merchant  ship  and  the  tackle,  and  apparel  of  the 
same,  of  the  value  of  three  thousand  dollars,  together  with  sev- 
enty chests  of  opium,  of  the  value  of  five  thousand  dollars, 
then  and  there  being  in  and  on  board  the  same  ship,  of  the 
goods  and  chattels  of  certain  citizens  of  the  said  United  States 
to  the  said  jurors  as  yet  unknown  ;  and  then  and  there  upon  the 
high  sea  aforesaid,  out  of  the  jurisdiction  of  any  particular  State, 
being  under  the  care  and  custody,  and  in  the  possession  of  the 
mariners  aforesaid,  they  the  said  A.  B.,  [and  the  others,  naming 
them,'\  from  the  care,  custody,  and  possession  of  the  mariners  afore- 
said, then  and  there,  to  wit,  upon  the  higii  sea  aforesaid,  out  of 
the  jurisdiction  of  any  particular  State,  piratically  and  feloniously, 
and  by  force  and  violence,  and  against  the  will  of  the  mariners 
aforesaid,  did  steal,  take,  rob,  and  run  away  with ;  against  the 
peace  of  said  United  States,  and  contrary  to  the  form  of  the 
statute  thereof  in  such  case  made  and  provided. 

And  the  jurors  afoJesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  B.,  [and  the  others,  naming  them,'] 
the  offenders  aforesaid,  were  first  brought  into  B.  aforesaid,  in 
the  said  district  of  Massachusetts,  after  the  commission  of  said 
offence  ;  and  that  the  said  district  of  Massachusetts  is  the  district 
into  which  they  were  first  brought. 

284.  For  piratically  running  away  with  a  Vessel  by  the  Mari- 
ners of  the  same  Vessel} 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  [and 
ten  others,  naming  them,  and  giving  to  each  his  proper  addition,] 
on  the  day  of  they  the  said  A.  B.,  [and  the  others,] 

then  being  mariners  of,  in,  and  on  board  a  certain  vessel  of  the 
said  United  States,  called  the  Plattsburg,  belonging  and  apper- 
taining exclusively  to  citizens  of  the  United  States  aforesaid, 
(whose  names  are  to  the  jurors  aforesaid  as  yet  unknown,)  with 
force  and  arms,  and  upon  the  high  sea,  out  of  the  jurisdiction  of 
any  particular  State,  in  and  on  board  said  vessel,  whereof  one 
W.  H.  was  then  and  there  master  and  commander ;  the  same 
vessel,  and  the  tackle,  apparel,  and  furniture  thereof,  oi  the 
value  of  ten  thousand  dollars ;  and  certain  goods  and  merchan- 
dise,   to    wit,    [here    state  the  articles  and  allege  the  value  of 

'  See  a  similar  precedent  in  3  Chitt.  1132,  for  running  away  with  ship's  boat. 
The  form  is  the  same,  except  in  the  description  of  the  property. 


PIRACY.  223 

each,']  all  being  then  and  there  the  goods,  chattels,  and  property 
of  certain  citizens  of  the  United  States,  (to  the  jurors  as  yet 
unknown,)  then  and  there  being  laden  on  board  said  vessel  called 
the  Plattsburg  ;  then  and  tliere  upon  the  high  sea  aforesaid, 
out  of  the  jurisdiction  of  any  particular  State,  did  betray  the  trust 
reposed  in  tiiem  as  mariners  of  said  ship,  and  then  and  there  turn 
pirates ;  and  the  same  ship,  with  force  and  arms,  piratically  and 
feloniously  did  steal,  take,  and  run  away  wiih  ;  they  the  said 
A.  B.,  [(itid  the  others,]  being  then  and  there  mariners  of  the  said 
vessel,  and  in  and  on  board  thereof,  upon  the  high  sea  aforesaid, 
out  of  the  jurisdiction  of  any  particular  State  ;  against  the  peace 
of  the  said  United  States,  and  contrary  to  the  form  of  the 
statute  of  the  Con2;ress  of  said  United  States  in  such  case  made 
and  provided.  [^Then  go  on  and  allege  that  the  offenders  were 
first  brought  into,  or  first  arrested  in  this  district  of  Massachu- 
setts, as  in  the  conclusion  of  the  next  preceding  precedent.]^ 

285.  For  Piracy,  by  causing  a  Revolt  in  a  Merchant  ShipJ^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &c., 
(and  ten  others  whose  names  are  to  the  jurors  aforesaid,  as  yet 
unknown,)  on  upon  the  high  sea,  and  out  of  the  jurisdic- 

tion of  any  particular  State,  being  mariners,  in  and  on  board  a 
certain  merchant  ship  called  the  Dove,  the  said  ship  Dove  then 
being  a  ship  belonging  exclusively  to  certain  citizens  of  the 
said  United  States,  whose  names  are  to  the  jurors  aforesaid  as 
yet  unknown,  whereof  one  C.  D.,  a  citizen  of  the  said  United 
States  was  then  master,  piratically  and  feloniously  did  endeav- 
our to  make,  and  did  make  a  revolt  in  the  same  ship,  the 
said  C.  D.  then  and  there  being  master  of  the  same  ship  as 
aforesaid  ;  against  the  peace  of  the  said  United  States,  and 
contrary  to  the  form  of  tlie  statute  thereof  in  such  case  made 
and  provided. 

*  The  two  foregoing  precedents  may  be  adapted  to  all  the  other  cases  con- 
templated in  the  statute  of  the  United  States,  using  in  the  forms,  the  precise 
words  of  the  statute  applicable  to  the  case. 

2  3  Chitt.  11.31 ;  Cro.  C.  C.  591,  (6th  Ed.) ;  Cro.  C.  A.  316. 


224  PIRACY. 


28G.  For  piratically    taking  and  rvnning  away  with  a  Ship, 
Tackle,^  Cargo,  ^-c} 

The  jurors  &,c.,  upon  their  oath  present,  that  A.  B.,  of&c., 
C  I).,  of  &.C.,  and  E.  F.,  of  Sic,   on  upon  the  high  sea, 

and  out  of  the  jurisdiction  of  any  particular  State,  then  being 
mariners,^  in  and  on  board  a  certain  merchant  shi[),  called  the 
Dove,  whereof  one  G.  H.,  a  citizen  of  the  said  United  States, 
was  then  master  ;  the  said  ship  Dove  then  being  a  ship  belong- 
ing to  certain  citizens  of  tlie  United  Stales,  to  the  jurors  afore- 
said as  yet  unknown,  upon  the  high  sea  aforesaid,  and  out  of  the 
jurisdiction  of  any  particular  State,  did  betray  the  trust  reposed 
in  them,  as  mariners  of  the  said  ship,  and  then  and  there  upon 
the  high  sea  aforesaid,  out  of  the  jurisdiction  of  any  particular 
State,  did  turn  pirates,  and  the  same  ship,  and  the  a|)parel  and 
tackle  thereof,  of  the    value   of  and  one  hunched    hogs- 

heads of  sugar  of  the  value  of  \Jierc  state  all  the  goods  and 

property,  piratically  taken  and,  carried  away,  with  the  value  of 
each  article,]^  of  the  goods  and  chattels  of  certain  citizens  of  the 
said  United  States,  to  the  jurors  aforesaid  as  yet  unknown,  then 
and  there  being  in  the  same  ship,  under  the  care  and  custody, 
and  in  the  possession  of  the  said  G.  H.,  as  master  of  the  said 
ship,  then  and  there,  upon  tlie  high  sea  aforesaid,  out  of  tiie  juris- 
diction of  any  particular  State,  from  the  care,  custody,  and  pos- 
session of  the  said  G.  H.,  piratically  and  feloniously  did  steal, 
take,  and  run  away  with,  they  the  said  A.  B.,  C.  D.,  and  E.  F., 
then  and  there  being  mariners  of  the  said  ship,  and  in  and  on 
board  the  said  ship  on  the  liigh  sea  as  aforesaid  ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of 
the  statute  thereof  in  such  case  made  and  provided.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  C.  D.  and  E.  F.,  the  oflenders  aforesaid,  after 
the    commission    of  said    offence,   to    wit,    on  were    first 

brought  into  the  said  Massachusetts  district,  and  that  the  said 
Massachusetts  district  is  the  district  into  which  the  said  offenders 
were  first  brouglit  as  aforesaid. 

»  Cro.  C.  C.  592,  (6th  Ed.) ;  3  Chitt.  1131,  1132;  Statute  of  United  States 
of  April  30,  1819,  §  8  ;  Gordon's  Digest,  p.  716,  note  (6.)  See  a  similar  pre- 
cedent, 1  Gall.  Rep.  247,  United  States  v.  Tully  et  al. 

*  Or  "  captain,"  if  such  be  the  case. 


PIRACY.  225 


287.  Against  a  Captain  or  Mariner  for  voluntarily  yielding  up 

his  Vessel  to  a  Pirate} 

The  jurors  &-c.,  upon  their  oath  present,  that  A.  B.,  of 
on  &c.,  upon  the  high  sea,  out  of  the  jurisdiction  of  any  particu- 
lar State,  he  the  said   A.  B.  then  being  master  and  captain  of 
\or  a  mariner  in  and  on  hoard^  a  certain  merchant  ship,  called 
the  then  and  there  belonging  and    appertaining  to  certain 

citizens  of  the  United  States,  to  the  jurors  aforesaid  unknown  ; 
and  the  said  A.  B.,  then  being  a  citizen  of  said  United  States  and 
captain  of  the  said  ship  as  aforesaid,  did  betray  the  trust  in  him 
the  said  A.  B.  reposed,  and  did  then  and  there  on  the  high  sea, 
out  of  the  jurisdiction  of  any  particular  State,  wilfully,  volunta- 
rily, piratically,  and  feloniously  yield  up  and  surrender  the  said 
ship,  of  which  he  was  then  and  there  captain  as  aforesaid,  to  cer- 
tain pirates,  whose  names  are  to  said  jurors  unknown  ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of  the 
statute  thereof  in  such  case  made  and  provided. 

288.  Against  a  Seaman  for  laying  violent  Hands  upon  his 
Commander,^  with  intent  to  prevent  his  fighting  in  Defence  of 
his  Ship. 

The  jurors  &;c.,  upon  their  oath  present,   that  A.  B.,  of  &ic., 
on  on  the  high  sea,  out  of  the  jurisdiction  of  any  particu- 

lar State,  he  the  said  A.  B.  then  and  there  being  a  seaman  on 
board    a  certain   ship,  called  the  belonging  exclusively  to 

certain  citizens  of  the  said  United  States,  to  the  jurors  aforesaid 
yet  unknown,  in  and  upon  the  body  of  one  C.  D.,  he  the  said 
C.  D,  then  and  there  being  the  commafider  of  the  said  ship 
called  the  on   the   high  sea  aforesaid,  out  of  the  jurisdic- 

tion of  any  particular  State,  feloniously  and  piratically  did  make 
an  assault ;  and  that  the  said  A.  B.,  being  then  and  there  such 
seaman  as  aforesaid,  in  and  on  board  the  ship  aforesaid,  felo- 
niously and  piratically,  did  lay  violent  hands  upon  him  the  said 
C.  D.,  commander  of  said  ship  as  aforesaid,  and  the  commander 
of  him  the  said  A.  B.  on  board  the  same  ship ;  with  intent, 
thereby  piratically  and  feloniously  to  hinder  and  prevent  him  the 
said  C.  D..  commander  of  said  ship  as  aforesaid,  from  fighting  in 
defence  of  his  said  ship,  and  of  the   goods  and  chattels  then  on 


1  On  the  act  of  Congress  of  April  30, 1819,  §  8.     Gordon's  Digest,  p.  716. 

2  Ibid. 

29 


226  PIRACY. 

board  the  same,  committed  to  the  trust  of  him  the  said  C.  D ; 
against  the  peace  of  the  said  United  States,  and  contrary  to  the 
form  of  the  statute  thereof  in  such  case  made  and  provided. 

289.  Against  an  Accessory  to  a  Piracy  before  the  Fact} 

\_Set  forth  the  charge  against  the  principal,  as  in  the  pre- 
ceding precedents,  as  the  case  may  be,  and.  then  proceed  as 
follows  :  ]  And  the  jurors  aforesaid,  upon  their  oatii  aforesaid, 
do  further  present,  that  E.  F.,  of  he,  before  the  piracy  and 
felony  aforesaid  was  committed,  in  manner  and  form  aforesaid, 
to  wit,  on  the  said  day  of  in  the  year  aforesaid,  on 

the  high  sea,  out  of  the  jurisdiction  of  any  particular  State, ^  did 
piratically  and  feloniously,  knowingly  and  wittingly,  aid  and 
assist,  procure,  command,  counsel,  and  advise  the  said  A.  B. 
the  piracy  and  felony  aforesaid  to  do  and  commit.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  felony  and  piracy  aforesaid,  so  as  aforesaid  done  and 
committed  by  the  said  A.  B.,  did  affect  the  life  of  him  the  said 
A.  B.  ;  and  that  the  said  A.  B.  did  do  and  commit  the  piracy 
and  felony  aforesaid,  in  manner  aforesaid,  upon  the  high  sea, 
without  the  jurisdiction  of  any  particular  State,  upon  and  in  pur- 
suance of  the  aid,  assistance,  procurement,  command,  counsel, 
and  advice  aforesaid,  of  the  said  E.  F.,  given  and  rendered  as 
aforesaid  to  the  said  A.  B.  by  him  the  said  E.  F. ;  against  the 
peace  of  ihe  said  United  States,  and  contrary  to  the  form  of  the 
statute  thereof  in  such  case  made  and  provided. 

290.  Against  an  Accessory  to  a  Piracy  after  the  Fact.^ 

\Set  forth  the  charge  against  the  principal,  as  in  the  preceding 
precedents,   as   the  case  may  be,  and  then  proceed  as  follows  :  ] 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.,  of  &c.,  afterwards,  to  wit,  on  the  said 
day  of  in  the  year  aforesaid,  on  the  high  seas,  [or  on  the 

land,  if  such  be  the  fact,  naming  the  place,Y  out  of  the  jurisdic- 
tion of  any  particular  State,  well  knowing  that  the  said  A.  B. 
had  done  and  comu)itted  the  felony  and  piracy  aforesaid,  did 
knowingly  entertain  and  conceal  the   said   A.  B.,  and  did  know- 

^  Act  of  Congress  of  April  30,  1790,  §  10.  If  the  aiding  &c.  was  given  and 
rendered  on  the  land,  it  must  be  so  alleged,  naming  the  particular  place.  See 
the  section  of  the  statute  above  quoted. 

2  Act  of  Congress  of  April  30,  1790,  §  11. 

3  Ibid. 


PIRACY.  227 

ingly  receive  and  take  into  the  custody  of  him  the  said  E.  F. 
the  said  vessel,  goods,  and  chattels,  which  had  been  by  the  said 
A.  B.  piratically  and  feloniously  taken  as  aforesaid,  he  the  said 
E.  F.  then  and  there  well  knowing  the  same  to  have  been  pi- 
ratically and  feloniously  taken  as  aforesaid  ;  against  the  peace  of 
said  United  States,  and  contrary  to  the  form  of  the  statute 
thereof,  in  such  case  made  and  provided. 

291.  For  breaking  and  boarding  a  Ship,  assaulting  &fc.   the 
Crew,  and  stealing  Sfc.  the  Cargo} 

The  jurors  of  the  United  States  of  America,  within  and  for 
the  district  aforesaid,  upon  their  oath  present,  that  John  Palmer, 
[and  others,  naming  them,']  of  on  upon  the  high  sea, 

out  of  the  jurisdiction  of  any  particular  State,  did  piratically  and 
feloniously  set  upon,  board,  break,  and  enter  a  certain  ship, 
called  the  then  and  there  being  a  ship  belonging  to  certain 

persons  to  the  jurors  aforesaid  unknown,  and  then  and  there  pirati- 
cally and  feloniously  did  make  an  assault  in  and  upon  certain 
persons,  whose  names  are  to  the  jurors  aforesaid  unknown,  being 
mariners  in  the  same  ship  ;  and  then  and  there  piraiically  and 
feloniously  did  put  the  aforesaid  persons,  mariners  of  the  same 
ship  as  aforesaid,  and  in  the  ship  aforesaid  then  and  there  being, 
in  personal  fear  and  danger  of  their  lives ;  then  and  there  in  the 
ship  aforesaid,  upon  the  high  sea  aforesaid,  and  out  of  the  juris- 
diction of  any  particular  State  as  aforesaid  ;  and  piratically  and 
feloniously  did  then  and  there  steal,  take,  and  carry  away  five 
hundred  boxes  of  sugar,  of  the  value  of  ^'20,000,  [here  set  forth 
all  the  articles  stolen  with  the  value  of  each,]  of  the  goods  and 
chattels  of  certain  persons  to  the  jurors  aforesaid  unknown,  then 
and  there  upon  the  high  sea  aforesaid,  out  of  the  jurisdiction  of 
any  particular  State,  being  found  in  the  aforesaid  ship,  in  custody 
and  possession  of  the  said  mariners  of  the  said  ship,  from  the  said 
mariners  in  the  said  ship,  and  fiora  their  custody  and  possession 
then  and  there  upon  the  high  sea  aforesaid,  out  of  the  jurisdic- 
tion of  any  particular  State,  as  aforesaid  ;  against  the  peace  of 
the  said  United  States,  and  contrary  to  the  form  of  the  statute 
of  the  said  United  States  in  such  case  made  and  provided.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  furtiier  pre- 
sent, that  the  aforesaid  district  of  Massachusetts,  is  the  district 
where  the  offenders  aforesaid  [it  is  best  to  repeat  their  names] 
were  first  apprehended  for  the  said  offence. 

'   United  States  v.  Palmer.et  ah,  3  Wheat.  R.  611. 


228  ^    PIRACY. 


292.  For  stabbing,  casting  into  the  Sea,  and  drowning  the 
Deceased.^ 

The  jurors  &.C.,  upon  their  oath  present,  that  A.  B.,  [and 
others,  naming  them,']  being;  citizens  of  the  United  States,  on 
upon  the  high  sea,  out  of  the  jurisdiction  of  any  particu- 
lar State,  in  and  on  board  a  certain  schooner,  the  name  of  which 
is  to  the  jurors  aforesaid  unknown,  in  and  upon  one  C.  D.,  a 
mariner  in  and  on  board  said  vessel,  piratically  and  feloniously 
did  make  an  assault,  and  that  he  the  said  A.  B.,  with  a  certain 
steel  dagger,  which  he  the  said  A.  B.  in  his  hand  then  and  there 
had  and  held,  the  said  C.  D.,  in  and  upon  the  breast  of  him  the 
said  C.  D.,  upon  the  high  sea,  and  on  board  the  schooner  afore- 
said, and  out  of  the  jurisdiction  of  any  particular  State,  piratically 
and  feloniously  did  strike  and  thrust,  giving  to  the  said  C.  D.  in 
and  upon  the  breast  of  him  the  said  C.  D.,  upon  the  high  sea 
aforesaid,  in  and  on  board  the  said  schooner,  and  out  of  the 
jurisdiction  of  any  particular  State,  piratically  and  feloniously,  in 
and  upon  the  breast  of  him  the  said  C.  D.  several  grievous,  dan- 
gerous, and  mortal  wounds  ;  and  did  then  and  there,  in  and  on 
board  the  schooner  aforesaid,  upon  the  high  sea,  and  out  of  the 
jurisdiction  of  any  particular  State,  piratically  and  feloniously, 
him  the  said  C.  D.  cast  and  throw  from  out  of  the  said  schooner 
into  the  sea,  and  plunge,  sink,  and  drown  him  in  the  sea  afore- 
said ;  of  whicli  said  mortal  wounds,  casting,  throwing,  plunging, 
sinking,  and  drowning,  the  said  C.  D.,  in  and  upon  the  high  sea 
aforesaid,  out  of  the  jurisdicdon  of  any  particular  State,  then 
and  there  instantly  died.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  by  reason  of  the  casting  and  throw- 
ing the  said  C.  D.  in  the  sea  as  aforesaid,  they  cannot  describe 
the  said  mortal  wounds.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  A.  B.,  [and  others,]  him 
the  said  C.  D.,  then  and  there,  upon  the  high  sea  aforesaid, 
out  of  the  jurisdiction  of  any  particular  State,  in  manner  and 
form  aforesaid,  piratically  and  feloniously  did  kill  and  murder ; 
against  the  peace  of  the  said  United  States,  and  contrary  to 
the  form  of  the  statute  thereof  in  such  case  made  and  provided. 

'   United  States  v.  Holmes  et  al.,  5  Wheat.  412. 


POLYGAMY.  229 


POLYGAMY. 

293.  Indictment  for  having  two  Wives  at  the  same  Time} 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  &.C., 
on  Stc,  at  &:c.,  did  marry  one  C.  D.,  spinster,  and  her  the  said 
C.  D.  then  and  there  had  for  his  wife  ;  and  that  the  said  A.  B. 
afterwards,  to  wit,  on  &tc.,  at  &;c.,  being  then  married  to,  and 
the  lawful  husband  of  the  said  C.  D.,  did  unlawfully  marry  and 
take  to  wife  one  E.  F.,  of  &c.,  widow,  and  to  her  the  said 
E.  F.  was  then  and  there  married  ;  the  said  C.  D.,  his  former 
wife,  being  then  living  and  in  full  life ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made   and   provided. 

294.  Indictment  for  having  two  Husbands  at  ane  and  the 
same   TimeJ^ 

The  jurors  Sic,  upon  their  oath  present,  that  A.  B.,  on  Stc, 
being  then  married  and  the  lawful  wife  of  one  C.  D.,  at  &tc., 
did  then  and  there  unlawfully  marry,  and  take  to  her  husband 
one  E.  F.,  the  said  C.  D.,  her  former  husband,  being  then  in 
full  life  5  against  the  peace  of  the  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.^ 

^  Statute  of  Massachusett3,  17S4,  c.  40  ;  2  Stark.  412,  413 ;  2  Chitt.  721,  18 ; 
Cro.  C.  A.  12. 

*  There  is  another  count  in  the  precedent  from  which  this  is  taken,  stating  the 
time  and  place  of  the  first  marriage.  It  is  the  case  of  the  Duchess  of  Kingston, 
on  which  she  was  tried  and  convicted  before  the  House  of  Lords,  and  the  pre- 
cedent is  taken  from  4  Hargrave's  St.  Tr.  100. 

^  The  first  wife  cannot  be  a  witness  against  her  husband,  or  vice  versa,  for 
the  first  marriage  was  valid ;  but  the  second  may  after  the  first  marriage  has 
been  established  •,  for  no  legal  relationship  exists  between  them.  2  Chitt.  719, 
note  (o).  For  the  proof  necessary  to  establish  the  first  marriage,  see  1  East 
P.  C.  469  -  472. 


230  SELLING  UNWHOLESOMR   PROVISIONS. 


SELLING  UNWHOLESOxME  PROVISIONS. 

295.  For  selling  unwholesome   Provisions :  On  the  Statute  of 
Massachusetts,  1784,  c.  50. 

The  jurors  &z;c.,  upon  their  oath  present,  that  A.  B.,  of 
on  at  in  the   county   aforesaid,    from  motives   of 

avarice  and  filthy  lucre,  was  induced  to  sell  and  did  sell  to  one 
C.  D.  a  certain  quantity  of  diseased,  corrupted,  contagious,  and 
unwholesome  provisions,  for  meat ;  that  is  to  say,  one  hundred 
pounds'  weight  of  diseased,  corrupted,  contagious,  and  unwhole- 
some beef;  knowing  the  same  to  be  diseased,  corrupted,  un- 
wholesome, and  contagious,  without  making  it  known  to  him  the 
said  C.  D.,  the  buyer  thereof;  to  the  great  damage  of  him  the 
said  C.  D. ;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 

296.  At  common  law,  for  supplying  unwholesome  Bread} 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &£c., 
on  at  in    the   county   aforesaid,   knowingly,  wilful- 

ly, maliciously,  and  deceitfully  did  provide,  furnish,  and  deliver, 
to  and  for  sundry  prisoners  of  war,  (whose  names  are  to  the 
jurors  aforesaid  yet  unknown,)  and  who  were  then  under  the 
protection  of  the  government  of  the  United  States,  confined  in  a 
certain   hospital,  called  hospital,  situated  in  afore- 

said, divers  large  quantities,  to  wit,  five  hundred  pounds'  weight 
of  bread,  to  be  eaten  as  food  by  the  said  prisoners  of  war  ; 
which  bread  was  then  and  there  made  and  baked  in  an  unwhole- 
some and  insufficient  manner,  and  was  made  of,  and  contained 
dirt,  filth,  and  other  pernicious  and  unwholesome  materials  and 
ingredients,  not  fit  to  be  eaten  as  aforesaid  ;  whereby  the  said 
prisoners  of  war  did  then  and  there  eat  of  said  bread,  and  there- 
by became  distempered  in  their  bodies,  and  injured  and  endan- 
gered in  their  healths ;  against  the  peace  and  dignity  of  the  Com- 
monwealth aforesaid. 

1  2  Stark.  656,  note  (6) ;  Rex  v.  Treeve,  East  P.  C.  821,  where  it  was  de- 
cided that  this  is  an  offence  at  common  law.  Also  Rex  v.  Dickson,  2  Stark. 
656,  note  (a),  where  it  was  decided  not  to  be  necessary  that  the  noxious  mate- 
rials should  be  particularly  stated. 


RAPE.  231 


RAPE. 


297.  Form  of  an  Indictment  for  a  Rape} 

The  jurors  &c.,   upon  their  oath  present,  that  A.  B.,  of  Sic, 
on  the  day  of  with  force  and   arms,  at  B.  afore- 

said, in  the  county  aforesaid,  in  and  upon  one  C.  D.,  of  &c., 
spinster,  violently  and  feloniously  did  make  an  assault ;  and  her 
the  said  C.  D.  then  and  there  feloniously  did  ravish  and  car- 
nally know,  by  force,^  and  against  her  will ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

298.  For  carnally   knowing   and   abusing  a  female    Child 
under  the  Age  of  Ten  Years.^ 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
on  the  day  of  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  C.  D.,  a  woman  child 
under  the  age  of  ten  years,  to  wit,  of  the  age  of  eight  years, 
feloniously  did  make  an  assault;  and  her  the  said  C.  D.  then 
and  there  unlawfully  and  feloniously  did  carnally  know  and 
abuse  ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the   form  of  the  statute  in  such  case  made  and  provided. 

299.  Against  two  Persons  for  assaulting  a  married  Woman 
with  intent  that  one  of  them  should  ravish  her.'^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &c., 
and  C.  D.,  of  he,  on  with  force  and  arms,  at  in 

and  upon  one  E.  F.,  the  wife  of  one  G.  F.,  of  &;c.,  did  make  an 
assault ;  and  her  the  said  E.  F.  did  then  and  there  beat,  abuse, 
and  ill-treat ;  with  an  intent  that  he  the  said  A.  B.  her  the  said 
E.  F.  should  then   and  there  feloniously   ravish,  and  carnally 


•  On  the  statute  of  Massachusetts  of  1805,  c.  97  ;  3  Chitt.  815.  See  2  Stark. 
409;  Cio.  C.  C.  611,  (6th  Ed.) 

*  The  words  "  by  force  "  are  made  use  of  in  the  statute  of  Massachusetts  last 
above  quoted.  They  are  used  in  1  Hawk.  c.  41,  §  1,  in  his  definition  of  Mape. 
But  they  are  not  used  in  the  English  precedents  for  JRape. 

3  3  Chitt.  815 ;  2  Stark.  409  ;  Cro.  C.  C.  611,  (6th  Ed.)  Statute  of  Massa- 
chusetts, 1805,  c.  97. 

♦  3  Chitt.  817;  2  Stark.  386. 


232  RESCUE. 

know,  by  force  and  against  her  will ;  against  the  peace  and  dig- 
nity of  the  Commonwealth  aforesaid,  and  contrary  to  the  form  of 
"the  statute  in  such  case  made  and  provided. 


RESCUE. 

Rescue  is  the  forcibly  and  knowingly  freeing  another  from  an 
arrest  or  imprisonment ;  and  is  generally  the  same  offence  in  the 
stranger  committing  it,  as  it  would  have  been  in  a  gaoler  to  have 
permitted  a  voluntary  escape.  A  rescue,  therefore,  of  one 
apprehended  for  felony,  is  felony ;  and  for  a  misdemeanor,  a 
misdemeanor.^  To  constitute  a  rescue,  the  party  rescued  must 
be  in  actual  custody.  A  prisoner,  who  breaks  gaol,  may  be 
arraigned  for  that  crime  before  he  is  convicted  of  the  crime  for 
which  he  was  originally  committed  ;  but  a  stranger,  or  third 
person,  who  rescues  a  felon,  cannot  be  found  guilty  before  the 
felon  is  convicted.^ 

The  indictment  must  set  forth  the  nature  and  cause  of  the 
imprisonment,  and  the  special  circumstances  of  the  fact  in  ques- 
tion.^ 

300.  Indictment  for  rescuing  a  Person  in  Custody  of  a  Con- 
stable under  a  Justice's  Warrant.'^ 

The  jurors  &:c.,  upon  their  oath  present,  that  A.  B.,  Esq., 
then  and  now  one  of  the  justices  of  the  peace  in  and  for  the 
county  of  S.,  duly  qualified  and  empowered  to  perform  the 
duties  of  that  office,  did  make  his  certain  warrant  in  writing, 
under  his  hand  and  seal,  directed  to  any  of  the  constables  of  the 
town  of  in  the  county  aforesaid,  by  which  said  warrant  the 

constables  aforesaid  were  commanded  to  take  the  body  of  C.  D., 
late  of  &ic.,  and  bring  him  before  the  said  A.  B.,  Esq.,  to  be 
by   him  the  said   A.   B.,  Esq.,  examined  concerning  an  assault 

»  4  Black.  Com.  131,  ^  H^wk.  b.  2,  c.  21,  §  8.  ^  id.  §  5. 

*  2  Chitt.  182,  183,  note  (»),  and  the  precedents  there  referred  to. 


RESCUE.  233 

said  to  have  been  made  and  committed  by  him  the  said  C.  D. 
upon  one  E.  F.,  of  &c.,  which  said  warrant  was  afterwards,  to 
wit,  on  at  &c.,  delivered  to  one  I.  J.,  one  of  the  constables 

of  the  said  town  of  duly  appointed  and  qualified  to  discharge 

and  perform  the  duties  of  that  otiice,  to  be  by  him  executed  in  due 
form  of  law ;  and  that  the  said  I.  J.,  so  being  constable  as  afore- 
said, afterwards,  to  wit,  on  at  aforesaid,  by  virtue  of 
the  said  warrant,  did  take  and  arrest  the  said  C.  D.  for  the 
cause  aforesaid  ;  and  him  the  said  C.  D.  the  said  I.  J.  in  his 
custody,  by  virtue  of  said  warrant,  then  and  there  had;  and  that 
the  said  C.  D.,  late  of  &;c.,  and  K.  L.,  late  of  &c.,  well  knowing 
the  said  C.  D.  so  to  be  arrested  as  aforesaid,  afterwards,  to  wit, 
on  the  said  day  of  at  B.  aforesaid,  with  force  and 
arms,  in  and  upon  the  said  I.  J.,  the  constable  aforesaid,  then 
and  there  being  in  the  due  and  lawful  execution  of  his  said 
office,  did  make  an  assault;  and  him  the  said  I.  J.  did  then  and 
there  beat  and  abuse  ;  and  that  the  said  K.  L.  him  the  said 
C.  D.  out  of  the  custody  of  him  the  said  I.  J,,  and  against  the 
will  of  him  the  said  I.  J.,  then  and  there  unlawfully  did  rescue 
and  put  at  large,  to  go  whither  he  would  ;  and  that  the  said 
C.  D.  himself,  out  of  the  custody  of  the  said  I.  J.  and  against 
his  will,  then  and  there  unlawfully  did  rescue  and  escape  at 
large  to  go  where  he  would  ;  to  the  great  damage  of  him  the  said 
I.  J.,  and  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

301.  For  rescuing  Goods  distrained  for  Rent} 

The  jurors  fee,  upon  their  oath  present,  that  A.  B.,  of  &c.,on 
at  in  due  course  of  law,  took  and  distrained  one  chest  of 
draws  of  the  value  of  four  dollars,  \here  describe  the  articles 
distrained'\  of  the  goods  and  chattels  of  one  C.  D.,  then  being 
in  a  certain  lodging-room  in  the  dwelling-house  of  him  the  said 
A.  B.,  situate  in  the  said  town  of  B.,  and  county  aforesaid ; 
which  same  distress  was  taken  by  the  said  A.  B.  for  the  sum  of 
ten  dollars ;  being  the  sum  due  for  rent  for  one  whole  year,  in 
arrear  from  the  said  C.  D.  to  him  the  said  A.  B.,  for  the  lodg- 
ing aforesaid  ;  and  that  the  said  A.  B.,  the  goods  and  chattels 
aforesaid  then  and  there  had  and  detained  in  his  custody  for  the 
cause  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  E.  F.,  late  of  &c.,  in  the 
county  of  yeoman,  afterwards,   to  wit,  on  the  day 

1  2  Chitt.  201,  202  ;  Stark.  617,  389,390;  Cio.  C.  C.  618,  (6th  Ed.) 
30 


234  RESCUE. 

of  in  the  year  aforesaid,  with  force  and  arms,  at 

aforesaid,  in  the  county  aforesaid,  the  said  goods  and  chattels, 
so  as  aforesaid  by  him  the  said  A.  B.  taken  and  distrained,  and 
in  the  custody  of  him  the  said  A.  B.  then  and  there  being,  from 
and  out  of  the  custody,  and  against  the  will  of  him  the  said  A.  B. 
then  and  there  unlawfully  and  injuriously  did  rescue,  take,  and 
carry  away  ;  the  said  sum  of  ten  dollars,  for  the  rent  in  arrear, 
as  aforesaid  due,  nor  any  part  thereof  being  paid,  and  other 
wrongs  then  and  there  did,  to  the  great  damage  of  the  said  A.  B., 
and  aganist  the  peace  and  dignity  of  the  Commonwealth  afore- 
said. 

302.  For  rescuing  Cattle  out  of  a   Pound  taken  as  Distress, 

Damage  Feasant} 

The  jurors  &ic.,  upon  their  oath  present,  that  on  at 

one  A.  B.  took  and  distrained  one  mare  and  two  colts  of 
the  cattle  of  one  C.  D.,  of  &;c.,  of  the  price  and  value  of  one 
hundred  dollars,  in  and  upon  a  certain  close  or  parcel  of  land  of 
him  the  said  A.  B.,  called  &c.,  lying  and  being  in  afore- 

said wrongfully  feeding  and  depasturing  upon  the  grass,  growing 
in  and  upon  the  said  close  and  parcel  of  land,  and  doing  damage 
to  him  the  said  A.  B.  there,  as  a  distress  for  the  damage  then 
and  there  done  and  doing  by  the  said  cattle  ;  and  the  said  mare 
and  colts  so  taken  and  distrained  as  aforesaid,  he  the  said  A.  B., 
on  the  same  day   and  year  aforesaid,  at  aforesaid,  in  the 

common  pound  of  the  town  of  in  the  said  county  of 

impounded  and  kept  and  detained  the  same  in  the  said  common 
pound  there,  as  a  distress  for  the  cause  aforesaid.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  mare  and  colts  being  so  impounded,  and  remaining  in 
the  said  common  pound  there,  as  a  distress  for  the  cause  afore- 
said, the  said  C.  D.,  on  at  aforesaid,  the  said  com- 
mon pound  broke  and  entered,  and  the  said  mare  and  colts 
from  out  of  the  same,  w^ithout  the  license  and  against  the  will  of 
the  said  A.  B.,  and  without  any  satisfaction  having  been  made  to 
the  said  A.  B.  for  the  said  damage  done  by  the  said  mare  and 
colts  as  aforesaid,  unlawfully  did  rescue,  take,  lead,  and  drive 
away  ;  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid.^ 

*  2  Chitt.  204,  note  (d),  where  it  is  said  that  pound-breach  is  indictable  at 
common  law,  and  Hawk.  b.  2,  c.  21,  §  20,  is  there  quoted ;   Id.  c.  10,  §  56. 

»  There  is  a  precedent  in  2  Chitt.  203,  204,  for  a  rescue  of  cattle  taken  damage 
feasant,  before  they  were  impounded.     Queer e,  as  to  that  precedent. 


RESCUE. 


235 


303.  For  breaking  a  Pound  and  letting  out  a  Mare} 

The  jurors  &tc.,  upon  their  oath  present,  that  heretofore,  to 
wit,  on  at  one  A.  B.,  in  due  form  of  law,  [here  state 

his  authority,']  took  and  distrained  one  mare,  the  property  of  one 
C.  D.,  of  &ic.,  of  the  value  of  in  and  upon  a  certain  close 

of  him  the  said  A.  B,,  situate  and  being  in  &c.,  and  there 
wrongfully  and  unlawfully  feeding  and  depasturing  upon  the 
herbage  and  grass  of  the  said  A.  B.,  then  growing  and  being  in 
and  upon  the  said  close ;  and  doing  damage  there  to  him  the 
said  A.  B.,  as  a  distress  for  the  said  damage  so  then  and  there 
done  and  doing  by  the  said  mare,  and  the  said  mare  so  taken 
and  restrained   as  aforesaid,  he  the  said   A.   B.,   on  at 

aforesaid,  in  a  certain  common  and  open  pound  of  and 
belonging  to  the  said  town  of  B.,  and  within  the  same  town, 
impounded  ;  and  the  same  mare  was  duly  and  lawfully  secured, 
kept,  and  detained  in  the  said  common  pound  there,  by  E.  F., 
then  and  there  being  the  lawful  keeper  of  the  said  pound,  as  a 
distress  for  the  cause  aforesaid.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  mare 
being  so  impounded  and  remaining  in  the  said  common  pound 
there,  as  a  distress  for  the  cause  aforesaid,  the  said  C.  D.,  after- 
wards, to  wit,  on  at  the  said  common  pound  broke 
and  entered,  and  the  said  mare,  from  and  out  of  the  same,  with- 
out the  license  or  consent,  and  against  the  will  of  the  said  A.  B., 
and  of  the  said  E.  F.,  the  keeper  of  said  pound,  and  without  any 
satisfaction  being  made  to  the  said  A.  B.  for  the  damage  done 
by  the  said  mare  as  aforesaid,  unlawfully  did  rescue,  take,  lead, 
and  drive  away  ;  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 


*  2  Chitt.  205.  See  note  (1)  to  the  last  preceding  precedent;  and  note  (d) 
to  tbe  precedent  in  2  Chitt.  204,  for  rescuing  cattle  out  of  a  pound,  taken  as  a 
distress,  damage  feasant. 


236 


RIOT. 


RIOT. 


304.  Indictment  for  a  Riot.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  13.,  C.  D., 
and  E.   F.,  together  with  divers  others  to   the  numher  of  ten, 
whose  names  are   to  the  jurors   aforesaid  as  yet   unknown,  on 
at  aforesaid,  in  the   county   aforesaid,  with   force 

and  arms,  did  unlawfully,  riotously,  and  routously  assemble, 
and  gatlier  themselves  together  to  disturb  the  peace  of  the  said 
Commonwealth  ;  and  then  and  there  being  so  assembled  and 
gathered  together,  did  then  and  there  make  a  great  noise,  riot, 
tumult,  and  disturbance,  and  then  and  there  unlawfully,  riotous- 
ly, routously,  and  tumultuously  remained  and  continued  togeth- 
er, making  such  noises,  riot,  tumult,  and  disturbance,  for  the 
space  of  six  hours  then  next  following,  to  the  great  terror  and 
disturbance  of  all  the  ciuzens  of  the  said  Commonwealth  there 
passing  and  repassing  in  and  along  the  public  streets  and  com- 
mon highways  there,  and  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 

305.  For  a  Riot  and  Assault.^ 

The  jurors  fee,  upon  their  oath  present,  that  A.  B.,  C.  D., 
and  E.  F.,  all  of  &,c.,  together  with  divers  others,  evil  disposed 
persons,  to  the  jurors  aforesaid   unknown,  on   the  day  of 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, did  unlawfully,  riotously,  and  routously  assemble  and  gather 
themselves  together,  to  disturb  the  peace  of  the  CommonweaUh ; 
and  being  then  and  there  so  assembled  and  gathered  together,  in 
and  upon  one  G.  H.,  unlawfully,  riotously,  and  routously  did 
make  an  assault ;  and  him  the  said  G.  H.,  then  and  there  unlaw- 
fully, riotously,  and  routously  did  beat,  wound,  and  ill-treat, 
so  that  his  life  was  thereby  greatly  endangered  ;  and  other  wrongs 
then  and  there  unlawfully,  riotously,  and  routously  did  and 
committed,  to  the  great  damage  of  him  the  said  G.  H.,  to 
the  great  terror  of  the  people,  and  against  the  peace  and  dignity 
of  the  Commonwealth  aforesaid. 


>  2  Stark.  640  ;  2  Chitt.  488. 

8  2  Stark.  640 ;  2  Chitt.  488,  500. 


RIOTS,  fee.  237 


306.  For  a  Riot,  Assault,  and  False  Imprisonment.^ 

\_The  same  form  as  in  the  next  preceding  precedent,  until  you 
come  to  the  ivords,  "  so  that  his  life  was  thereby  greatly  endan- 
gered," after  which  add,^  and  him  the  said  G.  H.,  then  and 
there,  with  force  and  arms,  unlawfully,  riotously,  routously,  and 
injuriously,  against  the  will  of  him  the  said  G.  H.,  and  contrary 
to  the  laws  of  this  Commonwealth,  without  any  legal  warrant, 
authority,  or  justifiable  or  probable  cause  whatsoever  therefor, 
did  imprison  and  detain  in  prison,  for  the  space  of  six  hours  then 
next  following,  and  other  wrongs  to  the  said  G.  H.  they  the  said 
A.  B.,  C.  D.,  and  E.  F.,  then  and  there,  unlawfully,  riotously, 
and  routously  did  and  committed  ;  to  the  great  terror  and  dis- 
turbance of  the  people,  to  the  great  damage  of  him  the  said  G.  H., 
and  against  the  peace  and  dignity  of  the  Commonwealth  afore- 
said. 

307.  For  riotously  assembling  to  prevent  the  Execution  of  an 
Act  of  the  Legislature,  relative  to  the  Revenue.^ 

The  jurors  &c.,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  together  with  divers  others,  to  wit,  fifty  other  persons, 
to  the  said  jurors  as  yet  unknown,  being  riotous  persons  and  dis- 
turbers of  the  peace,  on  at  &,c.,  with  force  and  arms, 
unlawfully,  riotously,  and  tumultuously  did  assemble  and  gather 
together  to  disturb  the  peace  of  the  said  Commonwealth,  and 
with  an  intent  unlawfully,  riotously,  and  tumultuously  to  obstruct 
and  hinder  the  execution  of  a  certain  act  or  law  of  the  Legisla- 
ture of  this  Commonwealth,  made  and  passed  on  the  day 
of  &c.,  entitled  "  An  act  "  Stc,  [^set  out  the  title  of  the  act,^  and 
being  so  assembled  and  gathered  together,  the  said  C.  D., 
E.  F.,  and  G.  H.,  and  the  said  other  persons,  to  the  said  jurors 
unknown,  then  and  there  unlawfully,  riotously,  and  tumultu- 
ously remained  and  continued  together,  making  great  noises,  and 
committing  great  violences  and  disturbances  for  the  space  of 
four  hours  ;  to  the  great  terror  of  the  people,  there  about  inhab- 
iting, resorting,  and  being,  and  of  all  other  citizens  of  said  Com- 


1  2  Chitt.  500 ;  Cro.  C.  C.  623,  (6th  Ed.) 

*  2  Chitt.  491,  492.  This  indictment  was  against  Samuel  Horn  and  others  ; 
Horn  was  convicted,  26  Geo.  3.  See  2  Chitt.  492,  note  (/).  See  alsb  a  similar 
precedent,  (2  Chitt.  vbi  sup.,)  for  a  riot  to  prevent  the  execution  of  a  turnpike 
road  act. 


238  RIOTS,  he. 

monwealth,  then  and  there  passing  the  public  highway  there  ;  to 
the  evil  example  of  all  others  in  like  case  to  offend,  and  against 
the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

308.  For  a  Riot  in   the  Theatre,  and  preventing  the  Per- 
formance of  the  Play} 

The  jurors  Sic,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  together  with  other  evil  disposed  and  riotous  per- 
sons, to  the  number  of  twenty,  to  the  jiuors  aforesaid,  as  yet,  un- 
known, on  at  &c.,  with  force  and  arms,  unlawfully,  riot- 
ously, and  tuinultuously,  did  assemble  and  gather  together  to 
disturb  the  peace  of  said  Commonwealth,  at  and  in  a  certain 
theatre  in  B.  aforesaid,  called  the  Boston  Theatre  ;  and  being  so 
assembled  and  gathered  together  in  the  said  theatre,  then  and 
there  made  and  raised,  and  caused  and  procured  to  be  made  and 
raised  a  great  noise,  riot,  tumult,  and  disturbance,  in  order  to 
obstruct,  and  for  the  purpose  of  obstructing,  preventing,  and  hin- 
dering the  performance  of  the  exhibition  of  a  certain  play,  called 
"  The  Merchant  of  Venice,"  in  the  said  theatre,  which  said  play 
was  appointed  by  the  managers  of  said  theatre  to  be  then  and 
there  acted  and  performed  at  and  in  the  said  theatre  on  that 
day,  according  to  public  notice  thereof  in  that  behalf  given  ;  they 
the  said  managers  of  said  theatre,  then  and  there  having  lawful 
power,  license,  and  authority  for  that  purpose  ',  and  that  the  said 
C.  D.,  E.  F.,  G.  H.,  and  the  said  other  persons,  to  the  said 
jurors  unknown,  did  then  and  there,  with  force  as  aforesaid,  un- 
lawfully, tumultuously,  riotously,  and  routously  obstruct,  prevent, 
and  totally  hinder  the  said  play  from  being  then  and  there  acted 
and  performed,  at  and  in  the  said  theatre  ;  to  the  great  terror  of 
the  people,  and  of  the  persons  then  and  there  peaceably  assem- 
bled and  composing  the  audience  at  and  in  the  said  theatre,  to 
the  great  loss,  damage,  and  injury  of  the  said  managers  of  said 
theatre,  and  against  the  peace  and  dignity  of  the  Commonwealth 
aforesaid. 

'  2  Chitt.  498,  499.  Going  to  the  tlieatre  with  intention  to  make  a  disturb- 
ance and  render  the  performance  inaudible  is  indictable.  See  similar  prece- 
dents Cio.  C    C.  625,  (6th  Ed.);  Cro.  C.  A.  166. 


RIOTS,  &;c.  239 


309.  For  riotously  assembling  and  hanging  the  Effigy  of  a 
Person} 

The  jurors  Sic,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  together  with  divers  other  evil  disposed  and  riotous 
persons,  to  the  number  of  twenty,  to  the  said  jurors  yet  unknown, 
being  of  unruly  and  turbulent  tempers  and  dispositions,  and  un- 
lawfully, wilfully,  and  maliciously  intending  to  disquiet  and  ter- 
rify one  I.  J.  on  at  &tc.,  unlawfully,  tumultuously,  and 
riotously  did  assemble  and  meet  together  with  intent  to  break  and 
disturb  the  peace  of  said  Commonwealth,  and  being  so  assem- 
bled as  aforesaid,  a  certain  wooden  gallows,  in  the  highway  there, 
and  near  to  the  dwelling-house  of  the  said  I.  J.,  unlawfully,  tu- 
multuously, riotously,  routously,  and  maliciously  did  erect ;  and 
a  certain  figure,  resembling  a  man.  as  and  ibr  the  effigy  of  the 
said  I.  J.,  then  and  there  unlawfully,  maliciously,  and  riotously 
did  hang  and  affix  to  the  said  gallows ;  and  did  then  and  there 
threaten  the  said  I.  J.  to  hang  him  up  alive,  and  did  then  and 
there,  for  the  space  of  three  hours,  make  a  great  noise  and  dis- 
turbance of  the  peace ;  to  the  great  terror  of  the  said  I.  J.  and 
of  the  people  there  and  thereabouts  residing,  inhabiting,  and 
being,  to  the  great  damage  of  him  the  said  I.  J.,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

310.  For  a  Riot  and  pulling  down  an  Out-House.^ 

The  jurors  &;c.,  upon  their  oath  present,  that  C.  D.j  E.  F., 
and  G.  H.,  together  with  other  evil  disposed  and  riotous  persons, 
to  the  number  of  ten,  to  the  said  jurors  unknown,  on  at 

with  force  and  arms,  to  wit,  with  sticks,  staves,  and  other 
offensive  weapons,  did  unlawfully,  riotously,  and  routously  assem- 
ble and  gather  together  to  disturb  the  peace  of  said  Common- 
wealth ;  and  being  so  assembled  and  gathered  together,  a  certain 
building  and  out-house,  in  the  possession  and  lawful  occupation 
of  one  I.  J.,  then  and  there  unlawfully,  riotously,  and  routously 
did  pull  down,  remove,  break,  and  destroy,  and  other  wrong's 
then  and  there  did  ;  to  the  great  disturbance  and  terror  of  the 
people  there  residing  and  being,  to  the  great  damage  of  him  the 
said  I.  J.,  and  against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid. 

1  From  2  Chitt.  501,  502,  note  (p),  all  the  defendants  were  convicted  on  this 
indictment. 
»  2  Chitt.  502. 


240  RIOTS,   &,c. 


311.  For  a  Riot  in  a  House,  and  assaulting  a  Lodger.^ 

The  jurors  Sic,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  togetlier  with  divers  other  evil  disposed  and  riotous 
people,  to  the  number  of  six,  to  the  said  jurors  yet  unknown,  on 
the  day  of  he,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  did  unlawfully,  riotously,  and  ronlonsly 
assemble  and  meet  together  to  disturb  the  peace  of  the  said 
Commonwealth,  and  being  so  assembled  and  met  together,  the 
dwelling-house  of  one  I.  J.  there  situate,  then  and  there  unlaw- 
fully, riotously,  and  routously  did  beset,  break,  and  enter,  and 
then  and  there  unlawfully,  riotously,  and  routously  did  make  a 
great  noise,  riot,  and  disturbance,  in  the  said  dwelling-house,  and 
did  then  and  there  unlawfully,  riotously,  and  routously  continue 
in  said  dwelling-house,  making  such  noise,  riot,  and  disturbance 
for  the  space  of  three  hours,  and  thereby  gready  disquieted  and 
terrified  the  said  I.  J.  and  his  lodgers  in  the  peaceable  possession 
and  enjoyment  of  his  said  dwelling-house,  and  then  and  there 
unlawfully,  riotously,  and  routously,  in  and  upon  one  K.  L.,  a 
lodger  and  inmate  in  said  dwelling-house,  an  assault  did  make, 
and  him  the  said  K.  L.  then  and  there  unlawfully,  riotously,  and 
routously  did  beat,  wound,  and  abuse,  so  that  his  life  was  thereby 
greatly  endangered,  and  thereby  greatly  terrified  the  said  I.  J. 
and  his  family  ;  and  other  wrongs  then  and  there  unlawfully, 
riotously,  and  routously  did  and  committed  ;  to  the  great  terror 
of  the  people,  to  the  great  damage  of  him  the  said  K.  L.,  and 
against  the  peace  and  dignity  of  the  Commonwealth  aforesaid. 

312.  For  riotously  attacking  a  Dwelling-House,  breaking 
the  Windows,  <^c. 

The  jurors  Sic,  upon  their  oath  present,  that  C.  D.^  E.  F., 
and  G.  H.,  together  with  divers  others  to  the  number  of  twenty, 
to  the  said  jurors  unknown,  being  evil  disposed  and  riotous  per- 
sons, and  disturbers  of  the  peace  of  said  Commonwealth,  on  Sic, 
with  force  and  arms,  to  wit,  with  clubs,  staves,  stones,  and 
other  dangerous  and  offensive  weapons,  at  B.  aforesaid,  in  the 
county  aforesaid,  the  dwelling-house  of  one  I.  J.  there  situate, 
in  the  night  time,  unlawfully,  riotously,  and  routously  did  attack 
and  beset,  and  did  then  and  there  unlawfully,  riotously,  routously, 
and  outrageously  make  a  great  noise,  disturbance,  and  affray, 
near  to  and  about  the  dwelling-house  of  him  the  said  I.  J.  there 

1  2  Chitt.  503, 504. 


RIOTS,  &£C.  241 

situate,  and  did  unlawfully,  riotously,  and  routously  continue  near 
to  and  about  the  said  dwelling-house,  making  such  noise,  dis- 
turbance, and  affray,  for  the  space  of  two  hours,  and  the  win- 
dows of  the  said  dwelling-house  did  then  and  there  unlawfully, 
riotously,  and  routously,  with  the  dangerous  and  offensive  wea- 
pons aforesaid,  break,  destroy,  and  demolish ;  to  the  great 
damage,  terror,  and  dismay  of  him  the  said  I.  J.,  and  of  his 
family,  in  the  dwelling-house  aforesaid  then  and  there  lawfully 
being,  to  the  great  terror  of  the  people  of  said  Commonwealth, 
and  agriinst  the  peace  and  dignity  of  the  Commonwealth  afore- 
said. 

313.  For  riotously  breaking  a  Dwelling-House  and  removing 
Goods} 

The  jurors  he,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  and  divers  other  evil  disposed  persons,  to  the  number 
of  twenty,  to  the  said  jurors  as  yet  unknown,  on  &c.,  with  force 
and  arms,  at  B.  aforesaid,  did  unlawfully,  riotously,  and  routous- 
ly assemble  and  meet  together  to  disturb  the  peace  of  said  Com- 
monwealth, and  being  so  assembled  and  met  together,  the  dwel- 
ling-house of  one  I.  J.  there  situate,  did  then  and  there 
unlawfully,  riotously,  and  routously  break  and  enter,  and  in  and 
upon  him  the  said  I.  J.  unlawfully,  riotously,  and  routously  did 
make  an  assault,  and  him  the  said  I.  J.,  in  his  dwelling-house 
aforesaid,  unlawfully,  riotously,  and  routously  did  beat,  wound, 
and  ill  treat ;  and  did  then  and  there,  in  the  said  dwelling-house, 
unlawfully,  and  against  the  will  of  the  said  I.  J.,  stay  and  continue 
for  the  space  of  four  hours,  and  then  and  there  unlawfully, 
riotously,  and  routously  did  seize  and  take  into  tieir  possession, 
and  put,  cast,  fling,  and  throw  divers  goods  and  chattels,  to  wit, 
[here  enumerale  the  goods,']  of  him  the  said  I.  J.,  of  the  value  of 
twenty  dollars,  then  and  there  in  the  dwelling-house  aforesaid 
being  found,  from  and  out  of  the  same  into  the  public  street 
there,  and  tliereby  greatly  damaged,  injured,  and  broke  in  pieces 
the  said  goods  and  chattels,  and  other  wrongs  then  and  there 
did ;  to  the  great  terror  of  the  people  of  said  Commonwealth,  to 
the  great  damage  of  the  said  I.  J.,  and  against  the  peace  and 
dignity  of  the  Commonwealth  aforesaid. 


*  2  Chitt.  504.    See  do.  C.  A.  331,  for  beginning  to  demolish  a  house,  on 
the  statute  of  1  Geo.  1,  c.  5,  §  4. 

31 


242  RIOTS,  &;c. 


314.  For  a  Riot,  in  breaking  into  a  Dwelling-House  on  pre- 

tence of  an  Execution.^ 

The  jurors  &.C.,  upon  their  oath  present,  that  A.  B.,  of  &ic., 
and  five  others,  to  the  jurors  aforesaid   unknown,  on  at 

with  force  and  arms,  unlawfully,  riotously,  and  routously, 
did  assemble  and  gather  themselves  together  to  disturb  the 
peace  of  the  said  Commonwealth  ;  and  so  being  then  and  there  as- 
sembled and  gathered  together,  the  said  A.  B.,  and  the  said  five 
others,  to  the  jurors  aforesaid  unknown,  afterwards,  on  the  same 
day,  at  aforesaid,   the   mansion-hou^e  of  one  C.  D.  there 

situate,  then  and  there  unlawfully,  riotously,  and  routously  did 
attack,  beset,  break,  and  enter;  and  tlie  door  of  a  chamber  in 
which  the  said  C.  D.  then  was,  in  the  mansion-house  aforesaid, 
they  the  said  A.  B.  and  the  said  five  others  to  the  jurors  afore- 
said as  yet  unknown,  then  and  there,  unlawfully,  riotously,  and 
routously  did  open,  break,  demolish,  and  enter,  under  the  pre- 
tence that  the  said  A.  B.,  and  the  five  others  to  the  jurors  afore- 
said as  yet  unknown,  then  and  there  had  an  execution  against  the 
said  C.  D.  for  the  sum  of  and  that  the  said  A.  B.  and  the 

said  five  other  persons  to  the  jurors  unknown,  then  and  there,  in 
and  upon  one  E.  F.,  spinster,  then  and  there  being  in  the  man- 
sion-house aforesaid,  did  then  and  there,  with  a  certain  drawn 
sword,  unlawfully,  riotously,  and  routously  make  an  assault,  and 
her  the  said  E.  F.  in  great  peril  and  danger  of  her  life,  then 
and  there,  unlawfully,  riotously,  and  routously  did  put;  and  other 
wrongs  then  and  there  did,  to  the  great  damage  of  them  the 
said  C.  D.  and  E.  F.,  and  against  the  peace  and  dignity  of  the 
Commonwealth  aforesaid. 

315.  Indictment  for  a  Riot,  breaking  info  a  Room  with  offen- 
sive Weapons,  Sfc,  Assault  and  Battery  in  the  Room, 
and  breaking  the  Furniture.^ 

The  jurors  &z;c.,  upon  their  oath  present,  that  A.  B.  C.  D.  and 
E.  F.,  together  with  divers  other  evil  disposed  and  riotous  per- 
sons, to  the  jurors  aforesaid  unknown,  on  at  with 
force  and  arms,  to  wit,  with  cudasses,  sticks,  bludgeons,  and 
other  offensive  weapons,  at  he.  aforesaid,  did  unlawfully,  riot- 
ously, and  routously  assemble  and  meet  together  to  disturb  the 

1  1  Trem.  P.  C.  181. 

*  2  Chitt.  502,  503  :  4  Went.  151. 


RIOTS,  kc.  '  243 

peace  of  the  said  Commonwealth,  and  being  so  assembled  and 
met  together  did  then  and  there  unlawfully,  riotously,  and  rout- 
ously  break  and  enter  into  a  certain  room  in  and  part  of  a  certain 
warehouse  or  building  of  one  G.  H.  there  situate ;  and  in  which 
said  room  the  said  G.  H.  and  divers  other  persons  were  then  and 
there  assembled  and  met  together,  and  did  then  and  there  unlaw- 
fully, riotously,  and  routously  make  a  great  noise,  tumult,  and  affray 
in  the  said  room,  and  then  and  there  with  the  said  cutlasses,  sticks, 
bludgeons,  and  other  offensive  weapons,  the  said  G.  H.  and  divers 
other  persons  whose  names  are  to  the  jurors  aforesaid  as  yet  un- 
known, unlawfully  &c.  assaulted  ;  and  the  said  G.  H.  and  the 
said  other  persons  then  and  there  unlawfully  &.c.  cut,  beat,  dragged 
about,  wounded,  and  ill  treated,  so  that  their  lives  were  thereby 
then  and  there  greatly  endangered,  and  then  and  there  unlaw- 
fully &;c.  broke  down,  demolished,  and  destroyed  the  window- 
shutters  and  divers  other  parts  of  the  said  warehouse,  and  thea 
and  there  unlawfully  &;c.  broke  up,  tore  up,  broke  to  pieces, 
damaged,  spoiled,  and  destroyed  the  benches,  chairs,  and  divers 
other  articles  of  the  furniture  and  fixtures  of  and  in  the  said 
room,  and  other  wrongs  to  the  said  E.  F.  &ic.  then  and  there 
unlawfully,  riotously,  and  routously  did,  to  the  great  damage  of 
the  said  E.  F.  &,c.,  in  contempt  &;c.,  to  the  evil  and  pernicious 
example  &;c.,  and  against  the  peace  he. 

316.  For  a  Riot,  by  twelve  Persons  remaining  an  Hour  after 
Proclamation  read} 

The  jurors  &c.,  upon  their  oath  present,  that  C.  D.,  E.  F., 
and  G.  H.,  \additions,'\  and  divers  other  persons,  to  the  number 
of  twelve  and  more,  to  the  jurors  aforesaid  as  yet  unknown,  on 
the  day  of  &ic.,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  unlawfully,  riotously,  routously,  and  turnul- 
tuously  did  assemble  and  meet  together,  to  the  great  disturbance 
of  the   public  peace,  and   that  afterwards,  to  wit,  on  the  said 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  I.  J., 

Esq.,  then  being  one  of  the  justices  of  the  peace  in  and  for  the 
said  county  of  S.,  duly  and  legally  qualified  and  empowered  to 
discharge  and  perform  the  duties  of  that  office,  did  then  and 
there  come,  as  near  as  he  safely  could,  to  the  said  C.  D.,  E.  F., 

'  2  Stark,  b.  42 ;  Cio.  C.  A.  175  ;  Cro.  C.  C.  630,  (6th  Ed.)  The  statute  of 
Massachusetts  [Stat.  17S6,  c.  38,  §  1,]  upon  which  this  precedent  is  drawn,  is 
very  similar  in  its  provisions  to  that  of  1  Geo.  1,  c.  5,  §  1,  2,  on  which  the 
precedents  in  Starkie,  Cro.  C.  A.  and  others,  are  drawn.  The  words  of  the  pro- 
clamation are,  mutatis  mutandis,  the  same. 


244  RIOTS,  &,c. 

and  G.  H.,  and  the  said  other  persons,  to  the  number  of  twelve 
and  more,  to  the  said  jurors  unknown,  being  then  and  there  so 
assembled  to  disturb  the  public  peace  as  aforesaid,  and  with  a 
loud  voice,  he  the  said  1.  J.,  Esq.,  did  then  and  there  com- 
mand silence  to  be,  while  proclamation  was  making  ;  and  the  said 
I.  J.,  Esq.,  after  that,  did  then  and  there  openly,  and  with  a 
loud  voice,  make  proclamation,  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  in  these  words  follow- 
ing, that  is  to  say,  "  Common  wealth  of  Massachusetts.  By  virtue 
of  an  act  of  this  Commonwealth,  made  and  passed  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  eighty-six,  entitled, 
an  act  for  the  suppressing  routs,  riots,  and  tumultuous  assemblies, 
and  the  evil  consequences  diereof,  1  am  directed  to  charge  and 
command,  and  I  do  accordingly  charge  and  command  all  per- 
sons, being  liere  assembled,  immediately  to  disperse  themselves, 
and  peaceably  to  depart  to  their  habitations,  or  to  dieir  lawful 
business,  upon  the  pains  inflicted  by  the  said  act.  God  save  the 
Commonwealth."  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C.  D.,  E.  F.,  and 
G.  H.,  and  said  divers  other  persons,  to  the  number  of  twelve 
and  more,  to  the  said  jurors  unknown,  afterwards,  to  wit,  on 
the   same  day  of  in  the  year  aforesaid,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  notwith- 
standing the  said  proclatr)ation  was  openly  made  as  aforesaid, 
did  then  and  there  unlawfully,  riotously,  and  tumultously,  and 
to  the  disturbance  of  the  public  peace,  remain  and  continue  to- 
geUier,  by  the  space  of  one  hour  and  more  after  such  command 
made  by  the  said  proclamation  as  aforesaid  ;  to  the  great  terror 
and  disturbance  of  all  the  quiet  and  peaceable  citizens  of  the  said 
Commonwealth,  against  the  peace  of  the  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

Robbery.  —  See  "  Larceny  and  Robbery. 


SABBATH-BREAKING. 


SABBATH-BREAKING. 


245 


The  profanation  of  the  sabbath  has  been  punished  by  our 
English  ancestors  as  an  offence  against  God  and  religion,  ever 
since  the  lime  of  the  Saxon  kings ;  and  by  the  fathers  of  New- 
England,  ever  since  the  settlement  of  the  country.  The  excel- 
lent remarks  of  Sir  William  Blackstone,  upon  this  subject,  should 
be  written  in  the  heart  of  every  American.  "  Besides,"  he 
observes,  "  the  notorious  indecenc)  and  scandal  of  permitting  any 
secular  business  to  be  publicly  transacted  on  that  day  in  a  country 
professing  Christianity,  and  the  corruption  of  morals  which 
usually  follows  its  profanation,  the  keeping  of  one  day  in  seven 
holy,  as  a  time  of  relaxation  and  refreshment,  as  well  as  of  piib- 
lic  worship,  is  of  admirable  service  in  a  State,  considered  merely 
as  a  civil  institution.  It  humanizes,  by  the  help  of  conversation 
and  society,  the  manners  of  the  people,  which  would  otherwise 
degenerate  into  a  sordid  ferocity  and  savage  selfishness  of  spirit ; 
it  enables  the  industrious  workman  to  pursue  his  occupation  in 
the  ensuing  week,  with  health  and  cheerfulness ;  it  imprints  on 
the  minds  of  the  people  that  sense  of  their  duty  to  God,  so  ne- 
cessary to  make  them  good  citizens,  but  which  would  be  worn 
out  and  defaced  by  an  unremitted  continuance  of  labor  without 
any  stated  times  of  recalling  them  to  the  worship  of  their 
Maker." 

317.  For  keeping  an  open  Shop  on  the  Lord's  Day} 

The  jurors  &lc.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
on  and  continually  afterwards,  until  the  day  of  the  taking 

of  this  inquisition,  at  aforesaid,  in  the  county  aforesaid,  was 

and  yet  is  a  common  sabbath-breaker,  and  profaner  of  the  Lord's 


>  This  precedent  is  drawn  upon  the  1st  section  of  the  statute  of  Massachu- 
setts of  1791,  c.  58.  See  also  2  Chitt.  20,  note  (c.)  where  it  is  said  that  the 
offence  consists  in  keeping  open  shop,  not  in  selling  the  goods  ;  cites  4  Black. 
63;  1  East  P.  C.  5;  Hawk.  b.  1,  c.  6,  §  6  ;  and  that  most  acts  for  profaning 
the  Sabbath,  are  punished  summarily  before  magistrates. 


246  SABBATH-BREAKING. 

day ;  and  that  the  said  A.  B.,  on  the  said  day  of 

being  Lord's  day,  and  at  divers  other  days  and  times,  being 
Lord's  days,  during  the  times  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  did  keep  open  his  the  said  A.  B.'s  shop,  and 
did  keep  an  open  and  common  public  shop  ;  and  in  the  said 
shop,  (lid  then  and  there,  and  on  the  said  other  days  and  limes, 
being  Lord's  days,  openly  and  publicly  sell,  and  expose  to  sale, 
flesh  meat,  to  divers  persons  to  the  said  jurors  unknown  ;  to  the 
great  injury  and  comn)on  nuisance  of  all  the  citizens  of  said  Com- 
monwealth, against  the  peace  and  dignity  of  the  Common- 
wealth aforesaid,  and  contrary  to  the  form  of  th,e  statute  in  such 
case  made  and  provided. 

318.  Against  a  Drover  for  travelling  and  driving  Droves 
of  Cattle  on  the  Lord's  Day :  On  the  2d  Section  of  the 
Statute.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  being  Lord's  day,   at  B.  aforesaid,  not  regarding  the 

duties  and  solemnities  of  the  said  day,  nor  the  due  observation  of 
the  same,  did  travel  on  said  day,  and  did  drive  and  cause  to  be 
driven,  on  the  said  Lord's  day,  a  large  collection  and  drove  of 
oxen,  cows,  sheep,  and  other  animals,  through  the  public  street 
and  highway  in  the  said  town  of  B.,  and  near  to  the  places  of 
public  worship  in  said  town,  during  the  performance  of  the 
public  worship  of  God  in  the  said  houses  of  public  worship  ; 
which  travelling  and  driving  of  said  oxen,  cows,  sheep,  and  other 
animals,  through  the  street  and  highway  aforesaid  by  the  said 
A.  B.,  was  not  from  necessity  or  mercy ;  to  the  great  disturb- 
ance and  annoyance  of  the  well  disposed  people  of  the  said  town 
of  B.,  against  the  peace  of  the  said  Commonweahh,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


1  This  law  is  totally  disregarded  in  some  parts  of  Massachusetts.  Thirteen 
droves  of  cattle  have  been  driven  through  one  town  in  the  county  of  Middlesex, 
each  consisting  of  from  one  hundred  and  fifty  to  two  hundred  in  number,  dur- 
ing the  performance  of  public  religious  services,  in  the  morning  of  one  Sab- 
bath and  within  a  few  rods  of  several  houses  of  public  worship ! 


SABBATH-BREAKING.  247 


319.  For  indecent  and  rude  Behaviour  within  the  Walls  of 
a  Place  of  Public  Worship  :  On  the  1th  Section  of  the 
Statute. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &z;c., 
being  a  person  of  rude,  indecent,  and  irreligious  habits  and  nian- 
ners,  and  regardless  of  the  duties  and  solemnities  of  the  public 
worship  of  God,  and  of  the  due  observation  of  the  Lord's  day, 
on  it  being  Lord's  day,   at  within  the  walls  of  a 

bouse  of  public  worship  there,  and  during  the  performance  of 
divine  service  in  said  house,  did  behave  rudely  and  indecently, 
by  [here  set  forth  the  rude  and  indecent  behaviour ; ']  against 
good  morals  and  good  manners,  against  the  peace  of  the  said 
Commonwealth,  and  contrary  to  the  form  of  tlie  statute  in  such 
case  made  and  provided. 

320.  For  interrupting  and  disturbing  Public  Worship  : 
On  the  Sth  Section  of  the  Statute. 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  Stc, 
being  a  person  regardless  of  the  duties  and  solemnities  of  the 
public  worship  of  God,  and  of  the  due  observation  of  the  Lord's 
day,  at  B.,  aforesaid,  in  the  county  aforesaid,  did  wilfully  inter- 
rupt and  disturb  a  certain  assembly  of  people,  there  met  for  the 
public  worship  of  God  within  the  place  of  their  assembling,  to 
wit,  within  the  meeting-house,  in  the  first  parish  in  the  said  town 
of  B.,  by  making  divers  loud  and  indecent  noises  and  tumults, 
during  the  performance  of  divine  service  in  said  meeting-house; 
to  the  great  injury  and  insult  of  the  orderly  people  then  and 
there  assembled  in  the  said  meeting-house  for  the  purposes 
aforesaid,  against  good  morals  and  good  manners,  against  the 
peace  of  the  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

Note.  The  statute  upon  which  these  precedents  are  drawn^ 
created  a  great  number  of  small  offences,  most  of  which  are 
cognizable  by  a  justice  of  the  peace.     See  2  Chit.  20,  note  (c.) 


248  SEPULCHRES  OF  THE  DEAD. 


SEPULCHRES  OF  THE  DEAD. 

321.  At  Common  Law,  fur  (Jigi^imr  up  and  carrying  away  a 

Dead  Body  out  of  a  Church  Yard} 

The  jurors  &ic.,  upon   llicir  oath  present,  that  A.  B.,  of  &tc., 
on  at  the  coinnion  burying  groiuul  [^or  church  yard, 

as  the  case  may  />e,]  in  the  first  parish  in  the  said  town  ol  B., 
there  situate,  unlawfully,  knowingly,  and  willully  did  break  and 
enter,  and  the  grave  there,  in  wliich  one  C  D.,  deceased,  had 
been  lately  before  interred  and  then  was,  unlawfully,  knowingly, 
and  wilfully  did  dig  open,  and  afterwards,  to  wit,  on  the  same 
day,  at  said  B.,  the  body  of  the  said  C  D.  out  of  the  grave 
aforesaid,  unlawfully,  knowingly,  and  wilfully  did  take  and  carry 
away,  to  the  great  scandal  to  Christian  burial,  and  against  the 
peace  and  dignity  of  the  Commonwealth  aforesaid. 

322.  For  digging  up  a  Human  Body  ^-c.  :  On  the  \st  Sec- 
tion of  the  Statute  of  Massachusetts,  of  February 
28,  1831.2 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  he,  at  kc,  knowingly,  wilfully,  and  feloniously  did  dig  up, 
remove,  and  convey  away,  and  did  knowingly,  wilfully,  and 
feloniously  aid  and  assist  in  digging  up,  removing,  and  conveying 
away,  a  human  body,  and  the  remains  thereof;  he  the  said  A.  B. 
not  being  authorized  by  the  board  of  health,  overseers  of  the 
poor,  or  the  selectmen  in  any  town  in  this  Commonwealth,  \^or 
by  the  directors  of  the  house  of  industry,  overseers  of  the  poor,  or 
the  mayor  and  aldermen  of  the  city  of  Boston  in  said  Common- 
wealth, if  the  offence  ivas  committed  in  that  city ;  ]  against  the 


1  See  the  precedents  in  2  Chitt.  35  ;  Cio.  C.  C.  212,  (6th  Ed.)  See  also 
2  T.  R.  733,  734 ;  2  East  P.  C.  652  ;  and  4  East  P.  C.  465  ;  Leach  C.  L.  497 ; 
4  Bl.  Com.  236;  1  Hale,  515.  To  arrest  a  dead  body  and  thereby  prevent  its 
burial,  is  unlawful ;  4  East,  465.  See  also  a  case  of  this  kind  referred  to  in  Da- 
vis's Justice,  393,  (2d  Ed.)  tried  at  nisiprius,  before  the  late  Chief  Justice 
Parsons. 

*  This  statute  repeals  the  former  statute  of  1814,  c,  175,  and  makes  the  of- 
fence a  felony. 


SEPULCHRES  OF   THE  DEAD.  249 

peace  of  the  said  Cornraonuealih,  and  contrary  to  the  form 
of  the  statute   thereof  in  such  case  made  and  provided. 

323.  Against  an  Accessory  before  the  Fact  for  digging  up  a 
Human  Body :  On  the  2d  Section  of  the  Statute. 

The  jurors  &ic.,  upon  their  oath  present,  that  A.  B.,  of  &,c., 
[here  state  the  offence  against  the  principal,  as  in  the  next  pre- 
ceding precedent,  and  then  go  on  as  foUows.'\  And  the  jurors 
aforesaid, upon  tlieir  oath  aforesaid,  do  luriher  present,  that  C.  D., 
of  &:c.,  on  Jkc,  at  &cc.,  before  the  committing  the  offence  and  felo- 
ny aforesaid,  in  manner  and  form  aforesaid,  by  the  said  A.  B.,  to 
wit,  on  at  in  the  county  aforesaid,   did  knowingly, 

wilfully,  and  feloniously  counsel,  hire,  and  procure  (abet,  assist, 
and  command)  him  the  said  A.  B.  the  offence  and  felony  afore- 
said to  do  and  commit ;  against  the  peace  of  the  said  Common- 
weahh,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.^ 


'  Draw  the  indictment  against  the  accessory  after  the  fact,  upon  the  second 
section,  according  to  this  precedent,  excepting  the  allegation  of  defendant's 
being  accessory  afler  the  fact ;  which  allegation  is  to  be  as  follows :  "  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  C.  D.» 
of  &c.,  on  at  well   knowing   the   said   A.  B.  to  have  committed 

the  offence  and  felony  aforesaid,  in  manner  aforesaid,  him  the  said  A.  B.  did 
then  and  there,  knowingly,  wilfully,  and  feloniously,  harbor,  conceal,  maintaio> 
and  assist  therein  ;  against  the  peace  fitc,  and  contrary  to  the  statute  &,c." 


32 


:?50  90D0MT  AND  BESTIALITY. 


SODOMY  AND  BESTIALITY. 

324.  For  Sodomy,  committed  with  a  Boy} 

The  jurors  &z;c.,  upon  their  oath  present,  that  A.  B.,  of  &;c., 
on  at  in  the  county  aforesaid,  in  and  upon  one  C.  D., 

a  male  child,  about  the  age  of  fifteen,  with  force  and  arms,  did 
make  an  assault,  and  then  and  there  wickedly  and  diabolically 
did  commit  the  crime  against  nature,  by  having  a  venereal  affair 
with  the  said  C.  D.,  by  then  and  there  having  carnal  knowledge 
of  the  body  of  said  C/D.  against  the  order  of  nature;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  thereof  in  such  case  made  and  provided. 

325.  For  Sodomy,  committed  ivith  a  Beast. 

The  jurors  &ic.,  upon  their  oath  present,  that  A.  B.,  of  Stc, 
on  at  in  the  county  aforesaid,  did  commit  the  crime 

against  nature,  by  having  a  venereal  and  carnal  intercourse  and 
copulation  with  a  cow  ;  and  that  he  the  said  A.  B.  did  then 
and  there,  wickedly  and  diabolically,  and  against  the  order  of 
nature,  have  carnal  copulation  with  said  cow  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
thereof  in  such  case  made  and  provided. 


>  On  the  statute  of  Massachusetts  of  1804,  c.  133,  §  1.  See  other  prece- 
dents for  these  detestable  offences,  drawn  upon  the  statute  of  25  Hen.  8,  c.  6 ; 
2  Chitt.  49,  50,  note  (o.) ;  2  Stark.  413  ;  and  Cro.  C.  C.  200,  201,  (6th  Ed.) 


TREASON.  251 


TREASON. 


326.  Form  of  an  Indictment  for  Treason,  by  levying  War 
against  the  United  States} 

The  grand  inquest  of  the  United  States  of  America,  for  the 
Virginia  district,  upon  (heir  oath  do  present,  that  Aaron  Burr,  late 
of  the  city  of  New  York,  and  state  of  New  York,  attorney  at 
law,  being  an  inhabitant  of,  and  residing  within  the  United  States, 
and  under  the  protection  of  the  laws  of  the  United  Slates,  and 
owing  allegiance  and  fidelity  to  the  said  United  States,  not 
weighing  the  duty  of  his  said  allegiance,  but  wickedly  devising 
andintending  the  peace  and  tranquillity  of  the  said  United  States 
to  disturb,  and  to  stir,  move,  and  excite  insurrection,  rebellion, 
and  war,  against  the  said  United  States,  on  the  tenth  day  of  De- 
cember, in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  six,  at  a  certain  place,  called  and  known  by  the  name  of 
Blannerhasset's  Island,  in  the  county  of  Wood,  and  in  the  district 
of  Virginia  aforesaid,  and  within  the  jurisdiction  of  this  Court, 
unlawfully,  falsely,  maliciously,  and  traitorously  did  compass,  im- 
agine, and  intend  to  raise  and  levy  war,  insurrection,  and  rebel- 
lion against  the  said  United  States;  and  in  order  to  fulfil  and 
bring  to  effect  the  said  traitorous  compassings,  imaginations, 
and  intentions  of  him  the  said  Aaron  Burr,  he  the  said  Aaron 
Burr,  afterwards,  to  wit,  on  the  said  tenth  day  of  December,  in 
the  year  aforesaid,  at  the  said  island  called  Blannerhasset's 
Island,  as  aforesaid,  in  the  county  of  Wood  aforesaid,  in  the 
district  of  Virginia  aforesaid,  and  within  the  jurisdiction  of  this 
Court,  with  a  great  multitude  of  persons,  (whose  names  to  the 
grand  inquest  aforesaid  are  at  present  unknown,)  to  the  number 
of  thirty  persons  and  upwards,  armed  and  arrayed  in  a  warlike 
manner,  that  is  to  say,  with  guns,  swords,  dirks,  and  other  war- 
like weapons,  as  well  offensive  as  defensive,  being  then  and  there 

*  This  is  the  indictment  against  Aaron  Burr,  taken  from  a  copy  of  the  pro- 
ceedings in  that  case,  transmitted  by  the  President  of  the  United  States  to  Con- 
gress, in  a  message  of  November  23,  1807.  The  superfluous  matter  in  this  in- 
dictment, probably  copied  from  the  obsolete  forms  in  the  English  precedents, 
is  here  omitted.  There  was  another  count  in  this  indictment,  charging  the 
treason  in  the  same  words,  with  an  addition,  alleging  an  overt  act,  by  proceed- 
ing down  the  Ohio,  with  the  traitorous  intention  of  taking  possession  of  the  city 
of  New  Orleans.  See  4  Cranch,  471,  476,  481,  487,  488,  for  a  full  report  of  this 
case,  and  the  exposition  of  the  law  of  treason  against  the  United  States. 


252  TREASON. 

unlawfully,  maliciously,  and  traitorously  assembled  and  gathered 
together,  did  falsely  and  traitorously  join  and  assemble  themselves 
together,  agninst  the  said  United  States,  and  then  and  there, 
with  force  and  arms,  did  fsdsely  and  traitorously,  and  in  a  hostile 
and  warlike  manner,  array  and  dispose  themselves  against  the 
said  United  States  ;  and  then  and  there,  on  the  day  and  in  the 
year  aforesaid,  at  the  island  aforesaid,  commonly  called  Blanner- 
hasset's  Island,  in  the  aforesaid  county  of  Wood,  within  the  said 
Virginia  district,  and  within  the  jurisdirlion  of  this  Court,  in  pur- 
suance of  such  their  traitorous  intentions  and  purposes  aforesaid, 
he  the  said  Aaron  Burr,  with  the  said  })ersons  so  as  aforesaid 
traitorously  assembled,  armed,  and  arrayed  in  njanner  aforesaid, 
most  wickedly,  maliciously,  and  traitorously  did  ordain,  prepare, 
and  levy  war  against  the  said  United  States,  contrary  to  the 
duty  of  the  allegiance  and  fidelity  of  the  said  Aaron  Burr,  against 
the  constitution,  peace,  and  dignity  of  the  said  United  States, 
and  against  the  form  of  the  act  of  the  Congress  of  the  said  United 
States,  in  such  case  made  and  provided, 

327.  For  levying  War  against  the  State  of  Massachusetts : 
On  the  Statute  0/1777.^ 

The  jurors  for  said  Commonwealth,  upon  their  oath  present, 
that  A.  B.,  of  in  the  county  of  yeoman,  on 

at  in  the   county  aforesaid,   he  the   said  A.  B.  being  a 

person  then  and  there  abiding  within  the  State  and  Common- 
wealth aforesaid,  and  deriving  protection  from  the  laws  of  the 
same  ;  and  then  and  there  owing  allegiance  and  fidelity  to  the 
said  State  and  Commonwealth,  and  being  then  and  there  a  mem- 
ber thereof;  not  regarding  the  duty  of  his  said  allegiance  and 
fidelity,  but  wickedly  devising  and  intending  the  peace  and  tran- 
quillity of  the  said  State  and  Commonwealth  to  disturb  and  de- 
stroy, on  at  in  the  county  of  in  the  said 
State  and  Commonwealth,  unlawfully,  maliciously,  and  traitor- 
ously did  compass,  contrive,  conspire,  and  intend  to  raise  and 
levy  war,  insurrection,  and  rebellion  against  the  said  State  and 
Commonwealth,  and  did  then  and  there  unlawfully",  maliciously, 
and  traitorously  conspire  to  levy  war  against  the   said  State  and 


'  See  Appendix  to  the  former  edition  of  Massachusetts  Laws,  vol,  li.  p.  1046. 
This  statute  has  never  been  revised,  as  appears  by  the  note  at  the  end  of  the 
last  section  of  the  statue.  See  2  Chitt.  83,  81,  This  indictment  in  Chitty  was 
for  the  riots  by  Lord  G.  Gordon  in  1780.  See  at«o  Cio.  €.  A.  189;  1  Trem. 
PC,  1. 


TREASON.  253 

Commonwealth  ;  and  to  fulfil  and  bring  to  effect  the  said  traitor- 
ous  compassings,   intentions,   and   conspirings  of  him    the  said 
A.  B.,  he  the  said  A.  B.  afterwards,  that  is  to  say,  on  the  said 
day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  aforesaid,   in  the  county  of 

aforesaid,  and  within  the  State  and  Commonwealth  aforesaid, 
with  a  great  multitude  of  other  persons,  whose  names  are  to  the 
jurors  aforesaid  as  yet  unknown,  to  the  number  of  one  hundred 
and  upwards,  armed  and  arrayed  in  a  warlike  manner,  that  is  to 
sny,  with  guns,  swords,  and  other  warlike  weapons,  as  well  offen- 
sive as  defensive,  being  then  and  there  unlawfully,  maliciously, 
and  traitorously  assembled  and  gathered  together,  did  falsely, 
maliciously,  and  traitorously  assemble,  combine,  conspire,  and 
join  themselves  together  against  the  said  State  and  Common- 
wealth, and  then  and  there,  with  force  and  arms,  did  wicked- 
ly, falsely,  maliciously,  and  traitorously,  and  in  a  warlike  and 
hostile  manner,  array  and  dispose  themselves  against  the  said 
State  and  Commonwealth  ;  and  then  and  there,  in  pursuance  of 
such  their  malicious  and  traitorous  intentions,  conspirings,  and 
purposes,  he  the  said  A.  B.,  and  the  said  other  persons  to  the 
jurors  aforesaid  unknown,  so  as  aforesaid  traitorously  assembled, 
armed,  and  arrayed  in  manner  afoi'esaid,  most  wickedly,  mali- 
ciously, and  traitorously  did  ordain,  prepare,  and  levy  public 
war  against  the  said  State  and  Commonwealth,  contrary  to  the 
duty  of  the  allegiance  of  the  said  A.  B.,  against  the  peace  and 
dignity  of  the  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

328.  For  traitorously  adhering  to,  and  giving  Aid  and  Com- 
fort to  the  Enemies  of  the  United  States  ^ 

The  jurors  kc,  upon  their  oath  present,  that  on  Sic,  and 
long  before,  and  continually  from  thence  hitherto,  an  open  and 
public  war  was,  and  yet  is,  prosecuted  and  carried  on  between 
the  United  States  of  America,  and  the  persons  exercising  the 
powers  of  government  in  France;  and  that  A.  B.,  late  of  &lc.,  a 
citizen  of  the  said  United  States,  well  knowing  tlie  premises,  but 
not  regarding  the  duty  of  his  allegiance,  but  as  a  traitor  against 
the  said  United  States,  and  wholly  withdrawing  the  allegiance, 
fidelity,  and  obedience,  which  every  citizen  of  the  said  United 
States  of  right  ought  to  bear  towards  the  government  and  people 
thereof,    and  conspiring,  contriving,  and    intending,   by  all    the 

»  2  Chitt.  68,  73  ;  Gordon's  Digest,  699,  art.  3584. 


264  TREASON. 

means  in  his  power,  to  aid  and  assist  the  persons  exercising  the 
powers  of  government  in  France,  and  being  enemies  of  the  said 
United  Slates  in  the  prosecution  of  the  said  war  against  the  said 
United  States,  heretofore,  and  during  the  said  war,  to  wit,  on 
&c.  aforesaid,  and  on  divers  other  days  and  times,  as  well  be- 
fore as  after  that  day,  the  said  A.  B.,  with  force  and  arms,  at 
&,c.,  maliciously  and  traitorously  did  adhere  to,  and  give  aid  and 
comfort  to  the  said  persons  exercising  the  said  powers  of  gov- 
ernment in  France,  then  being  enemies  of  the  said  government 
of  the  said  United  States  ;  and  that  in  the  prosecution,  perform- 
ance, and  execution  of  his  the  said  A.  B.'s  treason  and  traitorous 
adhering  aforesaid,  and  to  fulfil,  perfect,  and  bring  the  same  to 
effect,  he  the  said  A.  B.,  as  such  traitor  as  aforesaid,  during  the 
said  war,  to  wit,  on  &,c.  aforesaid,  and  on  divers  other  days  and 
times,  as  well  before  as  after  that  day,  at  &c.,  with  force  and 
arms,  maliciously  and  traitorously  did  conspire,  consult,  consent, 
and  agree  with  one  J.  H.  I.,  one  W.  J.,  and  divers  other  false 
traitors,  whose  names  are  to  the  jurors  aforesaid  unknown,  to  aid 
and  assist,  and  to  seduce  and  procure  others,  citizens  of  said 
United  States,  to  aid  and  assist  the  said  persons  exercising  the 
powers  of  government  in  France,  and  being  enemies  to  the 
United  States  as  aforesaid,  in  a  hostile  invasion  of  the  dominions 
of  the  said  United  States,  and  in  the  prosecution  of  the  said 
war  against  the  said  United  States;  ^  contrary  to  the  duty  of  the 
allegiance  of  the  said  A.  B.,  against  the  peace  and  dignity  of  the 
said  United  States",  and  contrary  to  the  form  of  the  statute  of  the 
said  United  States  in  such  case  made  and  provided. 

329.  For  levying  Wai-  against  the  United  States.^ 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  &c., 
not  weighing  the  duty  of  his  allegiance,  but  entirely  withdrawing 
the  obedience  which  a  true  and  faithful  citizen  of  the  United 
States  of  America  should  and  of  right  ought  to  bear  towards  the 
said  United  States,  and  the  government  and  constitution  thereof; 
and  as  much  as  in  him  lay,  intending  to  disturb  the  peace  and 
public  tranquillity  of  the  said  United  States,  on  at 

traitorously  did  compass  and  intend  to  raise  and  levy  war,  re- 
bellion,  and   insurrection  against  the  said  United   States  within 

'  If  there  be  any  other  overt  act,  it  must  be  introduced  immediately  preced- 
ing the  conclusion  of  the  indictment,  with  such  averments  as  are  contained  ia 
the  overt  acts  set  forth  in  this  indictment. 

•  Altered  from  a  precedent  in  1  Trem.  P.  C.  1. 


TREASON.  255 

the  same ;  and  to  fulfil  and  bring  to  effect  his  said  treasons  and 
traitorous  intentions  aforesaid,  he  the  said  A.  B.,  afterwards,  to 
wit,  on  the  said  day  of  with  force  and  arms,  at 

aforesaid,  in  the  county  aforesaid,  with  a  great  n)uhitude  of  other 
persons,  to  the  jurors  aforesaid  unknown,  lo  die  number  of 
armed  and  arrayed  in  a  warlike  manner,  lo  wit,  with  drums, 
trumpets,  pistols,  blunderbusses,  swords,  guns,  and  other  arms, 
as  well  offensive  as  defensive  ;  being  then  and  there  unlawfully 
and  traitorously  assembled  and  gathered  together  against  the  said 
United  States,  at  aforesaid,   in   the  county   aforesaid,   on 

aforesaid,  traitorously  did  prepare,  levy,  and  ordain  public 
war  against  the  said  United  States  ;  against  the  peace  of  the 
said  United  States,  and  contrary  to  the  form  of  the  statute  thereof 
in  such  case  made  and  provided. 

330.  Another  Precedent  for  Treason  for  levying  War} 

The  jurors  Sic,  upon  their  oath  present,  that  G.  G.,  of  &:c., 
being  a  citizen  of  the  United  States  of  America,  not  weighing  the 
duty  of  his  allegiance,  but  entirely  withdrawing  the  due  obe- 
dience which  every  citizen  of  the  said  United  States  should  and 
of  right  ought  to  bear  towards  the  government  and  constitution  of 
the  said  United  States;  and  wickedly  contriving,  devising,  and 
intending  to  disturb  the  public  peace  and  tranquillity  of  the  said 
United    States,   on  at  unlawfully,   maliciously,    and 

traitorously  did  compass  and  intend  to  raise  and  levy  war,  insur- 
rection, and  rebellion  against  the  said  United  States,  and  the 
government  thereof;  and  in  order  to  fulfil  and  bring  to  effect 
the  said  traitorous  compassings  and  intentions  of  him  the  said 
G.  G.,  he  the  said  G.  G.  afterwards,  that  is  to  say,  on 
with  force  and  arms,  at  aforesaid,  with   a  great  multitude 

of  persons,  whose  names  are  to  the  jurors  aforesaid  unknown,  to 
wit,  to  the  number  of  five  hundred  persons  and  upwards,  armed 
and  arrayed  in  a  warlike  manner,  that  is  to  say,  with  colors 
flying,  and  with  swords,  clubs,  bludgeons,  staves,  and  other 
weapons,  as  well  offensive  as  defensive,  being  then  and  there 
unlawfully,  maliciously,  and  traitorously  assembled  and  gathered 
together  against  the  said  government  of  the  said  United  States, 
most  wickedly,  maliciously,  and  traitorously  did  ordain,  prepare, 
and  levy  war  against  the  said  United  States,  and  the  government 
thereof;  against  the  peace  and  dignity  of  the  said  United  States, 
and  contrary  to  the  form  of  statute  thereof  in  such  case  made  and 
provided. 

'  2  Cliitt.  83,  84.    This  is  altered  from  the  indictment  in  the  case  of  Lord 
O.  Gordon,  for  the  riots  in  London  in  1780.     See  Trem.  3;  Cr.  C.  A.' 189. 


256  TREASON. 


331.  Another  Form  of  an  Indictment  for  Ti-eason  by  levying 
War  against  the  United  States.^ 

The  jurors  &;:c.,  upon  their  oath  present,  that  John  Fries, 
late  of  &.C.,  in  the  district  of  Pennsylvania,  yeoman,  being  an 
inhabitant  of,  and  residing  witiiin  the  said  United  Stales,  to  wit, 
in  the  distiict  aforesaid,  and  under  the  protection  of  the  laws  of 
the  said  United  Stales,  and  owing  allegiance  and  fidelity  to  the 
same;  but  disregarding  the  duly  of  the  said  allegiance  and  fidel- 
ity, and  wickedly  devising  and  intending  the  peace  and  tran- 
quillity of  the  said  United  Stales  to  disturb,  on  the  day  of 

at  &ic.,  in  tlie  district  aforesaid,  unlawfidly,  maliciously, 
and  traitorously,  did  compass,  imagine,  and  intend  to  raise  and 
levy  war,  insurrection,  and  rebellion,  against  the  said  United 
Stales  ;  and  to  fulfil  and  bring  to  effect  the  said  traitorous  corn- 
passings  and  intentions  of  him  the  said  John  Fries,  he  the  said 
John  Fries,  afterwards,  that  is  to  say,  on   the  said  day  of 

at  in  the  district   aforesaid,  with  a  great  multitude 

of  persons,  whose  names  to  the  jurors  aforesaid  are  unknown,  to 
the  numl)er  of  one  hundred  persons  and  upwards,  armed  and 
arrayed  in  a  warlike  manner,  that  is  to  say,  with  guns,  swords, 
clubs,  pistols,  and  other  warlike  weapons,  as  well  offensive  as 
defensive;  and  being  then  and  there  unlawfully,  maliciously, 
and  traitorously  assembled  and  gathered  together,  did  falsely  and 
traitorously  assemble  and  join  themselves  together  against  the 
said  United  States,  and  then  and  there,  with  force  and  arms, 
did  falsely  and  traitorously,  and  in  a  warlike  manner,  to  wit,  with 
guns,  swords,  clubs,  pistols,  and  other  weapons  as  aforesaid,  array 
and  dispose  themselves  against  the  said  United  States,  and  then 
and  there,  with  force  and  arms,  in  pursuance  of  such  their  trai- 
torous intentions  and  purposes,  he  the  said  John  Fries,  with  the 
said  other  persons,  to  the  said  jurors  unknown,  so  as  aforesaid 
traitorously  assembled  and  armed  and  arrayed  in  manner  afore- 
said, most  wickedly,  maliciously,  and  traitorously  did  ordain, 
prepare,  and  levy  war  against  the  said  United  States,  contrary 
to  the  duty  of  die  allegiance  of  the  said  John  Fries ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of 
the  statute  of  the  said  United  States  in  such  case  made  and 
provided. 


*  2  Chitt.  84,  (Riley's  Ed.)  This  is  the  case  of /oAra  i'^nes.     See  other  pre- 
cedents, Cro.  C.  A.  189;  the  case  of  Lord  G.  Gordon,  1  Trem.  1. 


TRESPASS.  267 


TRESPASS. 

Indictments  for  trespasses,  upon  the  statute  of  Massa- 
chusetts OF  17S5,  CH.  28. 

332.  For  cutting  down  Trees  grotving  for  Ornament :  On  the 

first  Section  of  the  Statute  J- 

The  jurors  &z;c.,  upon  their  oath  present,  that  A.  B.  of  &ic.,  on 
the  day  of  now  last  past,  with  force  and  arms,  at 

in  the  county  aforesaid,  did  unlawfully  cut  down  and 
destroy  two  elm  trees,  in  a  certain  avenue  to  the  dwelling-house 
of  one  C.  D.  there  planted,  placed,  and  growing  for  use,  shade, 
and  ornament,  on  land  not  Iiis  own  or  belonging  to  him  the  said 
A.  B.,  to  wit,  on  land  of  the  said  C.  D.,  and  of  which  he  the 
said  C.  D.  was  the  lawful  owner ;  he  the  said  A.  B.  then 
and  there,  not  having  the  consent  therefor  from  the  said  C.  D., 
the  owner  of  said  land  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

333.  Against  a  person  for  throwing  down  and  leaving  open 
Bars,  inclosing  Land  not  his  axon:  On  the  first  Section  of  the 
Statute. 

The  jurors  he,  on  their  oath  present,  that  A.  B.,  of  &c.,  on 
at  in  the  county  aforesaid,  with  force  and  arms, 

did  unlawfully  throw  down  certain  bars,  being  part  of  a  fence 
belonging  to  and  enclosing  a  certain  piece  and  parcel  of  land 
there  situate ;  and  did  then  and  there  unlawfully  leave  open  the 
same  bars  ;  the  said  land,  which  was  then  and  there  inclosed 
by  the  fence  and  bars  aforesaid,  then  and  there  belonging  to  one 
C.  D.,  and  not  to  him  the  said  A.  B.,  and  was  not  the  said 
A.  B.'s  own  land,  and  in  which  he  the  said  A.  B.  had  no  in- 
terest ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided.^ 

^  See  similar  precedents  on  the  statute  of  9  Geo.  1,  c.  22,  in  2  Stark.  551, 
and  3  Chitt.  1116,  in  ^vhich  the  offence  is  charged  as  a  felony  .'  By  the  statute 
of  Massachusetts,  the  offence  is  punished  by  a  fine,  of  not  less  than  five  nor 
more  than  forty  shillinns ! 

2  The  same  form  will  answer  for  throwing  and  leaving  open  "  gates  " ;  or 
for  injuring,  marring,  and  defacing  any  fence  ;  using  the  precise  words  of  the 
statute  descriptive  of  the  particular  offence. 

33 


258  TRESPASS. 

334.  Against  a  Person  for  digging  up  and  carrying  away 
Stones  and  Gravel,  on  Land  not  his  oivn :  On  the  first  Section 
of  the  Statute.^ 

The  jurors  &c.,  upon  tlieir  oath  present,  that  A.  B.,  of  &c., 
on  with   force  and   arms,   at   B.  aforesaid,  in  the  county 

aforesaid,  did  unlawfully  dig  up,  and  carry  away,  a  certain  large 
quantity,  to  wit,  ten  cart-loads,  of  stones  and  gravel,  in  which 
he  the  said  A.  B.  then  and  there  had  no  interest,  and  which 
was  then  and  there  lying  and  being  on  land  not  his  own,  but  on 
the  land  of  one  C.  D.  ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  sucli  case  made  and 
provided. 

335.  Against  a  Person  for  carrying  away  Goods  from  a  Wharf 
(or  Landing-place),  whereof  he  was  not  a  Proprietor  :  On 
the  first  Section  of  the  Statute. 

The  jurors  he,  upon  their  oath  present,  that  A.  B.,  of  he, 
on  with  force  and  arms,  at  aforesaid,  in  the  county 

aforesaid,  did  unlawfully  take  and  carry  away  certain  goods,  of 
the  value  of  to  wit,  [here  describe  the  goods  taken  away'\ 

from  a  certain  wharf  (or  landing-place)  there  situate,  called 
wharf;  he  the  said  A.  B.  then  and  there  not  being  a  proprietor 
or  owner  of  said  wharf  (or  landing-place),  in  which  said  goods 
&1C.,  taken  and  carried  away  as  aforesaid,  he  the  said  A.  B. 
then  and  there  had  no  interest ;  and  said  goods  being  taken 
and  carried  away,  as  aforesaid,  by  him  the  said  A.  B.,  without 
leave  of  any  person  who  had  interest  therein  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute, 
&c. 

336.  Against  a  Person  for  breaking  the  Glass  in  a  Building  not 

his  oivn  :  On  the  first  Section  of  the  Statute. 

The  jurors  for  said  Commonwealth,  on  their  oath  present,  that 
A.  B.,  of  &ic.,  on  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  did  unlawfully  and  wilfully  break  and  de- 
stroy the  glass,  to  wit,  ten  panes  of  window-glass,  in  a  certain 
building  there  situate,  not  his  own  -,  but  which  building  then  and 


'  The  same  form  will  answer  for  digging  up  «fec.  ore,  clav,  sand,  turf,  or 
mould,  roots,  fruit,  or  plants  ;  or  for  cutting  up  and  carrying  away  any  grass, 
hay,  or  corn,  as  mentioned  and  described  in  the  same  part  of  the  first  section  of 
the  statute. 


TRESPASS. 


259 


there  belonged  to,  and  was  the  property  of  one  C.  D. ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

137.  For  wilfully  hreaJcing  and  defacing  a  Mile-stone  :  On  the 
second  Section  of  the  Statute. 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  &,c., 
on  with  force  and  arms,  at  B.,  in  the  county  aforesaid,  a 

certain  mile-stone,  placed  and  put  up  in  a  public  road  there,  for 
public  convenience,  and  the  information  of  travellers,  did  unlaw- 
fully and  wilfully  break,  deface,  and  destroy;  he  the  said  A.  B. 
not  being  then  and  there  legally  authorized  so  to  do  ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

338.  For  cutting  down  Trees  secretly  in  the  Night  time  :  On  the 
third  Section  of  the  Statute.^ 

The  jurors  k.c.,  upon  their  oath  present,  that  A.  B.,  of  &z;c., 
on  with  force  and  arms,  at  in  the  county  aforesaid, 

did  unlawfully,  secretly,  and  in  the  night  time,  cut  down  and 
destroy  two  elm  trees,  in  a  certain  avenue  to  the  dwelling-house 
of  one  C.  D.,  there  planted,  placed,  and  growing,  for  use,  shade, 
and  ornament ;  on  land  not  his  own,  or  belonging  to  him  the  said 
A.  B.,  to  wit,  on  the  land  of  one  C.  D.,  and  of  which  he  the 
said  C.  D.  was  then  and  there  the  lawful  owner ;  he  the  said 
A.  B.  not  having  the  consent  therefor  from  him  the  said  C.  D,, 
the  lawful  owner  of  said  land  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

339.  Forms  of  Indictments  upon  the  additional  Act  of  Massa- 
chusetts, for  preventing  Trespasses,  0/I8I8,  Ch.  3,  §  2. 

The  jurors  &;c.,  upon  their  oath  present,  that  A.  B.,  of  Stc, 
on  at  having  entered  upon  a  certain  garden  belong- 

ing to  one  C.  D,,  there  situate,  and  in  his  the  said  C.  D.'s  pos- 
session, did  then  and  there  unlawfully  and  wrongfully  take  there- 
from a  certain  quantity  of  fruit,  to  wit,  [here  describe  the  quantity 
and  kind  of  fruit,']  without  the  permission  of  the  said  C.  D.,  the 


1  This  third  section  of  the  statute  is  applicable  to  all  the  offences  before  men- 
tioned, when  committed  secretly,  or  in  the  night;  and  when  thus  committed, 
the  fine  is  to  be  recovered  by  indictment. 


260 


TRESPASS. 


owner  thereof;  which  fruit  was  then  and  there  cultivated  in  the 
said  garden,  for  the  use  of  the  owner,  the  said  C.  D. ;  against 
the  peace  of  said  Commonweahh,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

340.  For  breaking  and  injuring   Trees  and  Shrubs  :    On  the 
third  Section  of  the  SjLatute  o/lSlS,  Ch.  3. 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  &c., 
on        _      at  having  entered  upon  an  orchard  there  situate, 

belonging  to  and  in  the  possession  of  one  C.  D.,  and  being  en- 
tered upon  and  into  said  orchard  as  aforesaid,  did,  without  the 
permission  of  the  said  C.  D.,  the  owner  thereof,  and  with  intent 
to  injure  him  the  said  C.  D.,  unlawfully  and  wantonly  break, 
bruise,  cut,  mutilate,  injiu-e,  and  destroy  a  large  number,  to  wit, 
ten  fruit  trees,  then  and  there  cultivated  in  safd  orchard,  for  the 
use  of  the  said  C.  D.,  the  said  owner,  and  which  were  then 
and  there  in  the  orchard  aforesaid  standing  and  growing  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

341,  For  entering  on   Grass-land,  and  carrying  away  Hay: 
On  the  second  Section  of  the  Statute  of  ISIS,  Ch.  3. 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of  Sic,  on 
at  having  entered  on  a  certain  piece  of  grass-land, 

belonging  to  one  C.  D.,  containing  four  acres,  there  situate,  and 
in  the  possession  of  the  said  C.  D.,  did  then  and  there  unlaw- 
fully and  wrongfully  take  therefrom  a  certain  quantity  of  grass, 
to  wit,  three  tons  of  grass,  of  the  value  of  tifty  dollars,  wfthout 
the  permission  of  the  said  C.  D.,  the  owner  thereof;  which  grass 
had  been  raised,  cultivated,  and  grown,  upon  the  grass-land 
aforesaid,  for  the  use  of  the  said  C.  D.,  the  lawful  owner  thereof; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

342.  For  committing  any  of  the  Trespasses  mentioned  in  the 
foregoing  Act  of  1818,  c.  3,  on  the  Lord's  Day:  On  the 
fourth  Section  of  the  Statute. 

The  jurors  &c.,  upon  their  oath  present,  that  A.  B.,  of&c,  on 

it  being  Lord's  day,   at  leaving  entered    upon   a 

certain  garden  belonging  to  one  C.  D.,  there  situate,  and   in  his 

the  said   C.   D.'s  possession,  did  then   and  there,  on  the  said 

Lord's  day,  unlawfully  and  wrongfully  take  therefrom  a  certain 


TRESPASS.  261 

quantity  of  fruit,  to  wit,  [here  insert  and  describe  the  nature  and 
quantity  of  the  fruit^  without  the  permission  of  him  the  said 
C.  D.,  the  owner  thereof;  which  fruit  was  then  and  there  culti- 
vated in  the  said  garden,  for  the  use  of  the  owner,  the  said 
C.  D.,  and  was  taken  away  on  the  Lord's  day,  as  aforesaid,  by 
him  the  said  A.  B. ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

343.  For  committing  a  Trespass  mentioned  in  the  Act  of  \8 IS, 
c.  3,  in  the  Might  time  :  On  the  fourth  Section  of  the  Statute. 

The  jurors  he,  upon  their  oath  present,  that  A.  B,,  of&ic.  on 
in  the   night  time  of  said  day,   that  is  to  say,  between 
sunsetting   and  sunrising   of  said   day,   at  having  entered 

upon  a  certain  garden  belonging  to  one  C.  D.,  there  situate,  and 
in  his  the  said  C.  D.'s  possession,  did  then  and  there,  in  ihei 
night  time,  between  sunsetting  and  sunrising  of  the  said  day, 
unlawfully  and  wrongfully  take  therefrom  a  certain  quantity  of 
fruit,  to  wit,  [here  state  the  nature  and  quantity  of  saidfruit,^ 
without  the  permission  of  him  the  said  C.  D.,  the  owner  thereof; 
which  fruit  was  then  and  there  cultivated  in  the  said  garden,  for 
the  use  of  the  owner,  the  said  C.  D.,  and  was  taken  by  the  said 
A.  B.  in  the  night  time,  between  sunsetting  and  sunrising  as  afore- 
said ;  against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

Note.  By  the  4th  section  of  the  statute,  trespasses  com- 
mitted on  the  Lord's  day,  or  between  sunsetting  and  sunrising, 
in  the  night  time,  are  liable  to  double  penalties  and  forfeitures. 
The  offences  in  the  first  section  of  the  Act  are  cognizable  by 
justices  of  the  peace ;  no  precedent  is  therefore  given  for  them. 
The  penalties  and  forfeitures  in  the  2d  and  3d  sections  of  this 
statute,  are  to  be  recovered  by  indictment,  or  information  in  the 
Court  of  Common  Pleas ;  the  commencement  of  which  is  lim- 
ited  to  one  year  from  the  time  the  offence  was  committed. 

The  foregoing  forms  may  be  adopted  for  all  the  other  offences 
created  by  the  statute. 


262  USURY. 


USURY. 


341.  Form  of  an  Indictment  for  Usury. ^ 

The  jurors  &;c.,  upon  their  oath   present,  that  on 
one  A.  B.,  of  k,c.,  did  lend  to  one  C.  D.  the  sum  of  dol- 

lars, and  that  the  said  C.  D.,  for  the  security  of  the  payment  of 
said   sum   of  dollars,  with  lawful  interest  for  the   same,  to 

the  said  A.  B.  afterwards,   to  wit,  on  the  day  of  at 

in  the  county  aforesaid,  did  give  and  deliver  to  the  said 
A.  B.  a  certain  promissory  note,  bearing  date  the  day  and  year 
last  aforesaid,  by  which  said  note  the  said  C.  D.  did  promise  to 


•  This  precedent  is  drawn  on  the  statute  of  Massachusetts  of  1783,  c.  55, 
which  is  copied  nearly  verbatim  from  12  Ann.  c.  16.  See  similar  precedents 
in  2  Chitt.  548,  549;  1  Trem.  P.  C.  269;  Cro.  C.  C.  692,  (6th  Ed.)  See 
note  (r)  in  the  above  mentioned  precedent  in  2  Chitt.  and  the  authorities  and 
remarks  therein  upon  the  nature  of  the  offence. 

The  statute  of  Massachusetts,  for  the  restraining  of  the  taking  of  excessive 
usuiy,  is  nearly  verbatim  with  12  Ann.  c.  16.  No  mode  is  pointed  out  in  the 
statute  of  12  Ann  for  the  recovery  of  its  penalties.  The  statute  of  Massachu- 
setts provides  that  its  penalties  shall  be  recovered  by  indictment,  or  action  of 
the  case  ;  one  moiety  to  the  Commonwealth  and  the  other  to  the  prosecutor ; 
and  there  is  a  proviso  in  the  last  mentioned  statute,  "  that  nothing  in  this  act 
shall  extend  to  the  letting  of  cattle,  or  other  similar  usages  among  farmers ;  or 
to  maritime  contracts  among  merchants  :  as  bottomry,  insurance,  or  course  of 
exchange,  as  hath  been  heretofore  accustomed." 

To  constitute  the  offence,  three  things  must  occur :  1.  A  contract  between 
the  parties.  2.  Monies  or  other  things  lent.  3.  Above  the  rate  of  legal  interest 
actually  received  by  the  lender  for  forbearance.  Hawk.  b.  1,  c.  28,  §  8,  note 
(I.)  In  the  case  of  ITie  Cominonwealth  v.  Cheney,  reported  in  6  Mass.  R. 
348,  no  person  can  be  held  to  bail  before  a  magistrate  in  Massachusetts  for  the 
offence  of  usury.  The  reasons  for  this  opinion  are  given  by  Chief  Justice  Par- 
sons in  delivering  the  opinion  of  the  court  in  that  case,  to  which  the  reader  is 
referred. 

By  a  subsequent  statute  of  Massachusetts  of  1788,  c.  12,  made  for  the  limita- 
tion of  actions  upon  penal  statutes,  all  prosecutions  for  penalties  created  by  this 
statute,  if  the  suit  be  by  action  qui  tarn,  are  limited  to  one  year,  and  to  two 
years,  if  it  be  by  indictment. 

It  was  anciently  considered  unlawful  for  a  Chistian  to  take  any  kind  of  usury  ; 
and  whoever  was  guilty  of  it,  was  liable  to  be  punished  by  the  censures  of  the 
church;  and  that,  if  after  death  a  person  was  found  to  have  been  a  usurer 
while  living,  all  his  chattels  and  lands  were  forfeited  !  Hawk.  b.  1,  c.  32,  §  4, 
who  cites  3  Inst.  151 ;  2  R.  Abr.  800  ;  2  Inst.  506. 


USURY.  263 

pay  to  him  the  said  A.  B.,  or  his  order,  the  sum  of  with 

lawful  interest  for  the  same,   in   six  months  after  the  date  of  the 
same  note  ;  and  that  the  said  A.  B.,  afterwards,  to  wit,  on 
at  aforesaid,  unlawfully,  unjustly,  and  corruptly   did  re- 

ceive, accept,  and  take,  of  and  from  the  said  C.  D.,  the  sum  of 

dollars  and  cents,   of  the  monies  of  him  the  said 

C.  D.,  and  by  way  of  corrupt  bargain  and  loan,  for  the  forbear- 
ing and  giving  day  of  payment  of  the  said  sum  of  from  the 
said  day  of  until  the  said  day  of  which 
said  sum  of  so  as  aforesaid  received  and  taken  by  the  said 
A.  B.  for  the  forbearing  and  giving  day  of  payment  of  the  said 
sum  of             from   the   said             day  of             until  the  said 

day  of  did   exceed   the  rate  of  six  dollars  for  the 

loan  of  one  hundred  dollars  for  the  year  ;  against  the  peace  of 
the  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


INFORMATIONS  IN  CRIMINAL  CASES. 


Form  of  an  Information  in  a  Criminal  Case.^ 

Commonwealth  of  Massachusetts. 

Middlesex  ss.  At  the  Supreme  Judicial  Court  begun  and  hold- 
en   at  within    and  for  the    county  of  Middlesex  on  the 
Tuesday  of  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and 

Be  it  remembered,  that  P.  M.,  Esq.,  Attorney  General  of 
the  said  Commonwealth,  [^or  the  Solicitor  General,  if  he  be  the 
officer  who  files  the  information,^  being  present  here  in  court,  on 
behalf  of  the  said  Commonwealth,  gives  the  said  Court  to  under- 
stand and  be  informed,  that  C.  D.,  of  &c.,  on  &c.,  [here  describe 
the  offence  with  the  same  technical  accuracy  as  in  an  indictment ; 
and  conclude  each  count  the  same  as  in  an  indictment.  If  there 
be  several  counts,  commence  each  as  follows  :  ]  And  the  said  At- 
torney \or  Solicitor^  General,  who  prosecutes  as  aforesaid,  fur- 
ther gives  the  court  here  to  understand  and  be  informed,  that  the 
said  C.  D.,  on  Sic,  at  &c.,  [state  the  offence  as  in  a  second 
count  in  an  indictment,  and  conclude  the  whole  as  follows :  ] 
Whereupon  the  said  Attorney  [or  Solicitor']  General,  who  pros- 
ecutes for  the  said  Commonwealth  as  aforesaid,  prays  the  con- 
sideration of  the  court  in  the  premises  ;  and  that  due  process  of 
law  may  be  awarded  against  the  said  C.  D.  in  this  behalf;  and 
that  he  may  be  held   to  answer  to  the    said    Commonwealth, 


»  2  Chitt.  6 ;  2  Lord  Raym.  1461.     See  form  of  2d  count,  Lord  Raym.  1462. 


INFORMATIONS  IN  CRIMINAL  CASES.  265 

touching  and  concerning   the  premises  aforesaid,  and  do  therein  • 
what  to  law  aiid  justice  shall  appertain.^ 

P.  Yi.,  Attorney  General  of  Massachusetts. 

*  There  is  no  variance  in  the  general  form  of  an  inforniation  in  criminal  cases. 
The  fiame  of  it  must  of  course  be  the  same  in  all  cases  where  it  will  lie,  as  for 
the  prosecution  of  a  misdemeanor  of  any  description.  When  you  have  pro- 
ceeded as  far  as  the  words,  "  gives  the  court  to  understand  and  be  informed," 
nothing  is  necessary  but  to  turn  to  the  precedents  of  indictments,  and  take  the 
alleg.itions  and  descriptions  of  the  offence  you  are  about  to  prosecute,  and 
transfer  them  into  the  information  ;  for  the  same  technical  accuracy  is  required 
in  an  information  as  in  an  indictment. 

For  these  reasons,  it  is  not  necessary  to  add  the  mere  skeletons  of  informa- 
tions in  criminal  cases  to  this  collection.  This  mode  of  prosecuting  crimes  is 
not,  iu  my  apprehension,  either  congenial  or  consistent  with  the  nature  of  our 
government  and  institutions.  If  the  practice  were  restricted  to  corporations,  it 
might  not  be  objectionable.  But  if  it  were  extended  here,  either  in  law  or  prac- 
tice, as  it  is  in  England,  to  every  species  of  crime  excepting  treason,  mis- 
piision  of  treason,  and  felony,  the  protection  of  the  innocent  from  groundless 
and  malicious  prosecutions,  which  we  think  we  derive  from  the  institution  of 
grand  juries,  might  be  endangered.  The  instructions  which  are  given  by  our 
judges  in  their  charges  to  the  grand  jury  to  accuse  no  one  without  full  and 
satisfactory  evidence  of  his  guilt,  is  one  of  the  most  admirable  features  in  the 
administration  of  public  justice.  The  institution  of  grand  juries  has  existed  in 
England  for  nearly  a  thousand  years,  and  in  this  country  ever  since  its  settle- 
ment. 

The  power  of  the  attorney  general  in  England,  in  regard  to  the  prosecution 
of  crimes  by  information,  would  be  viewed  with  great  jealousy  in  this  country. 
He  is  the  sole  judge  of  what  public  misdemeanors  he  will  prosecute.  1  Chitt. 
845;  4  Bl.  Com.  312,  Bac.  Abr.  Information,  A.  He  may  file  an  information 
against  any  one  whom  he  thinks  proper  to  select,  without  oath,  without  motion, 
or  opportunity  for  the  defendant  to  show  cause  against  the  proceedings.  Id. 
Ibid.  Nor  is  he  in  any  case  liable  to  an  action  for  a  groundless  or  malicious 
prosecution.  1  Chitt.  846 ;  1  T.  R.  514,  535.  So  independent  is  his  author- 
ity, that  the  court  will  not  quash  his  information  on  the  motion  of  the  defend- 
ant; but  will  compel  him  to  plead  or  demur.  1  Salk.  372  ;  Bac.  Abr.  Informa- 
tion, A. ;  1  Chitt.  847.  The  information,  being  a  mere  assertion  of  the  ofiScer 
who  files  it,  may  be  amended  at  any  time  before  trial,  without  the  consent  of 
the  defendant.  These  amendments  may  be  very  extensive  and  material ; 
counts  may  be  struck  out,  and  new  ones  inserted.  1  Chitt.  868  ;  4  Burr.  2528. 
Power  to  this  extent,  concentrated  in  a  single  individual,  and  that  individual 
not  only  the  officer,  but  the  minister  of  the  government  which  he  serves, 
would  not  be  endured  in  this  country. 

What  is  the  extent  of  the  power  of  a  public  prosecutor  under  our  constitution 
of  government  has  never,  to  my  knowledge,  been  tested. 

There  is  a  general  rule  stated  in  5  Mass^  R.  257,  which  is  to  this  efTect  :  "  that 
34 


266  INFORMATIONS  QUO  WARRANTO. 

INFORMATIONS  QUO  WARRANTO. 

Commonwealth  v.  John  Breed} 

To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Court, 
begun  and  holden  at  Boston,  within  the  county  of  Suffolk,  on  the 
first  Tuesday  of  March,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty-six,  and  continued  by  adjournment  to 
Tuesday,  the  eighteenth  day  of  July  then  next  following. 

Be  it  remembered,  that  Daniel  Davis,  Solicitor  General  of  the 
Commonwealth  of  Masachusetls,  comes  into  Court  and  brings 
with  him  here  into  Court  a  certain  resolveof  the  General  Court  of 
said  Commonwealth,  passed  on  the  twenty-sixth  day  of  January ,- 
in  the  year  of  our  Lord  one  thousand  eigiit  hundred  and  twenty- 
six,  containing,  among  other  things,  the  following  : 

"  Resolved,  that  the  Solicitor  General  be  instructed  to  com- 
mence proper  process  in  the  Supreme  Judicial  Court,  to  ascertain 
whether  the  proprietors  of  the  bridge  from  Belle  Isle  to  Chelsea, 
have  forfeited  their  right  to  maintain  the  same." 

Whereupon  the  said  Solicitor  General,  by  virtue  of  the  power 
and  authority  and  in  pursuance  of  said  resolve,  gives  the  said 
Court  here  to  understand  and  be  informed,  that  there  is,  and 
immemorially  hath  been,  a  certain  arm  of  the  sea,  extending 
from  the  open  harbour  of  the  city  of  Boston,  in  the  county  of 
Suffolk,  towards  and  unto  the  town  of  Chelsea  in  the  county  of 
Suffolk,  and  running  by  the  shores  of  the  said  town  of  Chelsea, 
and  bounding  northwardly  and  northwestwardly  on  said  shores, 
up  to  certain  mills,  landing  places,  and  marshes  in  said  town 
situate,  and  separating  the  shores  of  the  town  of  Chelsea  from 
the  westwardly  shores  of  a  certain  island  called  Belle  Isle,  lying 
southeastwardly  from  said  town,  and  that  the  said  arm  of  the 
sea  is  flowed  and  reflowed  by  the  tides  ;  and  is,  and  has  been, 
from  time  immemorial,  an  open  and  common  highway  for  all 
citizens  of  this   Commonwealth  to  pass  and   repass  with  their 

allpuhlic  misdemeanors  which  maybe  prosecuted  by  indictment,  may  be  prose- 
cuted by  information,  in  behalf  of  the  CommonweaUh  ;  unless  the  prosecution 
be  restrained  by  the  statute  to  indictment."  There  may  be  such  a  rule  ;  but 
I  confess  I  have  never  met  with  it  in  the  course  of  long  official  experience ; 
and  if  it  exists,  I  should  doubt  its  applicability  to  the  principles  and  policy  of  our 
government. 
»  4  Pick.  460. 


INFORMATIONS  QUO  WARRANTO.  267 

boats,  barges,  lighters,  sloops,  schooners,  and  other  vessels, 
loaded  and  unloaded,  at  all  times,  at  the  will  and  pleasure  of  said 
citizens  ;  and  has  been  so  used  and  enjoyed  by  such  citizens 
and  all  other  persons  having  occasion  to  pass.  And  that  one 
John  Breed  of  Boston,  in  the  county  of  Suffolk,  merchant, 
well  knowing  the  premises,  but  intending  to  impede  such  passing, 
and  to  prevent  such  immemorial  use  of  the  said  highway,  as  an 
arm  of  the  sea  as  aforesaid,  did,  with  such  intent,  at  said  Chel- 
sea, on  the  first  day  of  October,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twenty-four,  erect,  build,  keep  up, 
and  maintain,  a  certain  bridge,  constructed  of  wood,  from  said 
island  called  Belle  Isle,  in,  across,  and  upon  said  arm  of  the 
sea,  to  the  shores  of  the  town  of  Chelsea  aforesaid,  and  still  doth 
keep  up  and  maintain  the  same  bridge  ;  whereby  the  said  arm 
of  the  sea  and  common  and  ancient  highway  hath  been,  and 
yet  is,  obstructed  and  stopped  up,  so  that  the  said  citizens  and 
others  who  have  occasion  through  the  same  to  pass  with  their 
vessels  as  aforesaid,  have  been  and  still  are  obstructed  and  hin- 
dered, and  prevented  from  passing  and  repassing  and  sailing  in 
and  with  said  boats,  barges,  and  vessels,  in  and  along  said  arm 
of  the  sea  and  common  highway,  as  they  otherwise  could  and 
lawfully  might  do ;  and  that  said  John  Breed  hath  usurped,  and 
still  doth  usurp  upon  the  government  of  the  said  Commonwealth, 
to  have  and  maintain  the  said  bridge  ;  to  the  great  damage  and 
prejudice  of  the  rights  of  the  said  Commonwealth,  and  of  the  cit- 
izens thereof. 

Whereupon  the  said  Solicitor  General  prays  the  advice  of  the 
Court  here  in  the  premises,  and  for  due  process  of  law  against  the 
said  John  Breed  in  this  behalf  to  be  made,  to  answer  to  the  §aid 
Commonwealth,  by  what  warrant  he  claims  to  have  and  maintain 
and  keep  up  the  bridge  aforesaid,  in,  across,  and  upon  the  said 
arm  of  the  sea  and  common  and  ancient  highway.^ 

DANIEL  DAVIS,  Solicitor  General. 


'  An  information  in  the  nature  of  a  quo  warranto  may  be  filed  in  any  county 
where  the  court  is  in  session  ;  but  the  process  must  be  made  returnable  to,  and 
tried  in  the  county  where  the  respondent  lives.  Commonwealth  v.  Smead,  11 
Mass.  R.  74. 

An  information  resembles  not  only  an  indictment,  in  the  correct  and  techni- 
cal description  of  the  offence,  but  also  an  action  qui  tarn,  in  which  the  inform- 
er must  show  the  forfeiture  and  its  appropriations.  Commonwealth  v.  Mti- 
aenger,  4  Mass.  R.  465. 

It  is  a  general  rule,  that  all  public  misdemeanors  which  may  be  prosecuted 
by  indictment,  may  be  prosecuted  by  information  in  behalf  of  the  Common- 


268  INFORMATIONS  qUO  WARRANTO. 


Plea  to  the  foregoing  Information. 

And  now  the  sold  John  Breed  comes  and  defends,  when, 
where,  he.  And  having  heard  the  said  information  read,  says, 
that  under  color  of  the  premises  contained  ir;  the  said  informa- 
tion he  is  greatly  troiililed,  and  this  by  no  means  justly  ;  because, 
protesting  that  tlie  said  inforn)ation  and  the  matters  therein  con- 
tained are  not  stiflicient  in  law,  and  that  he  need  not,  nor  is  he 
obliged  by  the  law  of  the  land,  to  give  any  answer  iherelo,  yet 
lor  plea  in  this  behalf  the  said  Breed  says,  he  does  not  appre- 
hend that  the  said  Solicitor  General  should  or  ought  to  have,  or 
prosecute  his  said  action  against  him,  because  he  says,  that  the 
legislature  of  the  Commonvveahh  of  iNlassachusetts,  at  their 
session  holden  in  the  month  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixteen,  and  on  the  nineteenth  day 
of  said  morUh,  passed  an  act  in  the  following  words  to  wit  : 

"  An  Act  to  authorize  John  Breed  to  build  a  Bridge  from 
Belle  Island  to  Chelsea. 

"Sect.  1.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives in  General  Court  assembled,  and  by  the  authority  of 
the  same,  that  John  Breed  of  Boston  (the  proprietor  of  Belle 
Island),  and  his  heirs  and  assigns  be,  and  they  hereby  are  au- 
thorized and  empowered  to  build  and  keep  in  repair  at  all  times, 
a  bridge  convenient  for  the  accommodation  of  the  proprietors  of 
Belle  Island,  from  the  westerly  part  of  the  said  island  to  the 
head  land  in  Chelsea,  at  a  point  in  the  farm  of  Samuel  Cary, 
Esq.  late  of  said  Chelsea,  deceased. 

"  Sect.  2.  Be  it  further  enacted,  that  said  bridge  shall  be 
built  with  a  draw,  not  less  than  fifteen  feet  wide,  made  of  suita- 
ble materials,  and  conveniently  placed  for  the  accommodation  of 
such  vessels  as  may  have  occasion  to  pass  between  said  island 
and  Chelsea.  And  the  owner  or  owners,  proprietor  or  proprie- 
tors of  said  bridge,  at  his  and  their  own  expense,  shall,  at^  all 
times  when  necessary,  have  said  draw  raised  for  the  convenient 
passing  of  vessels   through  the  same  ;    and  in   case  any  vessel 


wealth,  unless  the  prosecution  is  restrained  by  the  statute  to  indictment,  (qu.) 
Commonwealth  v.  Inhabitants  of  Waterborough,  5  Mass.  R.  257. 

In  informations  on  penal  statutes,  for  forfeitures  incurred  by  malfeasance, 
a"-ainst  two  or  more  persons,  charging  them  all  with  the  malfeasance,  on  not  guil- 
ty pleaded,  the  jury  may  convict  some,  of  the  whole  or  of  part  of  the  offence 
charged,  and  may  acquit  others  ;  for  the  malfeasance  in  the  information  is  several, 
as  well  as  joint ;  and  each  defendant  incurs  a  forfeiture  in  proportion  to  his  own 
offence.     Hill  et  ux.  v.  Vavis  et  ah,  4  Mass.  R.  140. 


INFORMATIONS  QUO  WARRANTO.  269 

about  to  pass  said  bridge  shall  be  detained  at  the  draw  more 
than  one  hour,  the  proprietor  or  proprietors  of  said  bridge  shall 
forfeit  and  pay  to  the  owner  or  owners  of  sucli  vessel,  a  sum  not 
less  than  three  dollars,  nor  more  than  ten  dollars  ;  to  be  recov- 
ered by  action  of  debt  in  any  court  proper  to  try  the  same  ;  and 
shall  also  be  liable  to  pay  all  damages  wliich  the  owner  or  owners 
of  such  vessel  shall  or  may  sustain  by  reason  of  such  detention,  to 
be  recovered  in  an  action  of  the  case  in  any  court  proper  to  try 
the  same  ;  and  if  said  John  Breed,  his  heirs  and  assigns,  shall,  lor 
the  space  of  three  years  from  the  passing  of  this  act,  fail  or 
neglect  to  erect  said  bridge,  then  this  act  sliall  be  null  and  void, 
and  if  the  said  bridge  shall  be  erected  within  said  term  of  three 
years,  then  the  legislature  reserve  the  right  to  repeal  this  act, 
after  the  expiration  of  twenty  years  from  the  time  of  passing  the 
same." 

And  the  said  John  Breed  further  saith,  that  immediately, 
and  within  three  years  after  the  passing  of  said  act,  he  did  pro- 
ceed to  erect,  build,  and  finish  a  bridge  convenient  for  the 
accommodation  of  the  proprietors  of  Belle  Island,  from  the 
westerly  part  of  said  island,  to  the  hard  land  in  Chelsea,  at  a 
point  in  the  farm  of  Samuel  Gary,  Esq.  late  of  said  Chelsea, 
deceased,  and  that  he  has  at  all  times  kept  the  same  in  repair. 
And  the  said  John  Breed  further  saith,  that  the  said  bridge  was 
buili  with  a  draw  not  less  than  fifteen  feet  wide,  made  of  suitable 
materials,  and  conveniently  placed  for  the  accommodation  of 
such  vessels  as  had  occasion  to  pass  between  said  island  and 
said  Chelsea  ;  and  that  he,  the  said  Breed,  has,  at  his  ovi'n  ex- 
pense, at  all  times  when  necessary,  had  the  said  draw  raised,  for 
the  convenient  passing  of  ve5sels  through  the  same.  And  the 
said  Breed  further  saith,  that  he  has  at  all  times  conformed  to 
the  law  in  respect  of  said  bridge,  and  observed,  done,  and  per- 
formed all  and  singular  the  things  he  was  bound  to  observe,  do, 
or  perform  by  force  of  said  act,  or  the  laws  of  this  Common- 
wealth, in  respect  of  said  bridge,  and  that  the  said  bridge  by  him 
made  in  conformity  to  the  said  act,  as  aforesaid,  is  the  same 
bridge  that  is  complained  of  in  the  information  aforesaid  ;  and 
that  he  the  said  Breed  did  rightfully,  and  according  to  the  pro- 
visions of  law,  said  act,  and  the  power  and  privilege  thereby 
granted  him,  erect,  build,  keep  up,  and  maintain  the  said  bridge, 
as  well  and  lawfully  he  might  do.  All  and  singular  of  which 
matters  above  in  pleading  alleged,  the  said  Breed  is  ready  to 
verify  and  prove  to  this  Court.  Wherefore  he  prays  judgment, 
that  the  franchise  and  privileges  by  him  claimed  and  exercised 
as  aforesaid,  may  be  allowed  and  adjudged  to  him,  and  that  he 


270  INFRORMATIONS  QUO  WARRANTO. 

may  be  dismissed  and  discharged  of  and  concerning  the  prem- 
ises in  the  said  information  slated  and  contained.^ 

Information,  quo  xonrranio,  ngninst  S.  F.,  Esq.  for  exercising  the 
Office  of  Judge  of  i'robnte,  without  ff  arrant.^ 

[State  in  the  caption  the  name  of  the  county,  the  covrt,  and 
the  time  of  holding  it.  and  then  proceed  ] 

Be  it  rernenibcred,  that  Daniel  Davis,  Solicitor  General  of 
said  Commonweahh,   comes  into   Court,  in   his   proper   person, 

*  There  was  a  replication  to  this  plea,  which  is  not  here  inserted.  The  ma- 
terial fiicts  alleged  in  the  plea  were  not  denied,  and  the  proceedings  ended  in  a 
special  verdict,  in  which  all  the  facts  in  the  case  were  found.  It  was  afterwards 
argued,  and  decided  in  favor  of  the  respondent.  The  case  is  reported  in  4  Pick. 
460, 464,  465,  in  which  the  Court  state,  in  conclusion,  that  the  respondant  "  has 
not  forfeited  his  right,  by  any  misuser  of  it." 

2  This  case  is  reported  in  10  Mass.  R.  290.  In  this  case  the  following  points 
were  decided. 

1.  That  where  an  information  in  the  nature  of  a  quo  warranto  recites  an 
order  of  the  House  of  Representatives,  requesting  the  Solicitor  General  to  file 
such  information,  and  he  stated  that  he  filed  the  same  by  virtue  of  the  authori- 
ty of,  arid  in  compliance  with  the  said  order,  the  Court  refused  to  quash  the 
information,  as  not  duly  filed  ;  considering  that  it  was,  notwithstanding  such 
recital  and  statement,  filed  by  the  Solicitor  General  ex  officio. 

2.  That  an  information  quo  warranto  lies  as  well  against  officers  appointed 
by  the  supreme  executive  authority  of  the  Commonwealth,  as  against  those 
holding  corporate  offices  or  franchises. 

3.  That  the  Attorney  and  Solicitor  General  have  full  authority  to  file  an 
information  of  this  kind  by  virtue  of  the  general  powers  of  their  offices, 
without  any  interposition  of  the  legislature  ;  and  that  an  information  for  the 
purpose  of  dissolving  a  corporation,  whether  created  by  charter,  under  the 
seal  of  the  Co.mmonwealth,  or  by  statute  of  the  legislature,  may  be  prosecuted 
under  the  authority  of  the  legislature,  or  by  the  Attorney  or  Solicitor  General, 
acting  ex  officio  in  behalf  of  the  Commonwealth. 

4.  That  the  Supreme  Court  have  jurisdiction  of  all  informations  quo  warran- 
to, whether  for  dissolving  corporations,  or  for  removing  persons  from  any  oflBce, 
which  they  claim  to  hold,  and  in  whatever  cases  such  information  lies. 

An  information  quo  warranto  lies  against  those  only  who  claim  to  exercise 
some  public  office  or  authority.  Commonwealth  v.  Dearborn  et  al.,  15  Mass. 
R.  125. 

The  Court  refused  to  award  an  information  quo  v>arranto  against  an  officer 
holding  an  election  for  a  year  only  ;  because,  by  the  organizaUon  of  the  terms 
of  the  Court,  they  could  not  come  to  a  decision  of  the  question,  until  a  year 
had  expired.     Commonwealth  v.  Mhearn,  3  Mass.  R.  285. 

An  information  for  the  purpose  of  dissolving  a  corporation,  or  of  seizing  its 


INFORMATIONS  QUO  WARRANTO.  271 

and  brings  with  him  into  said  Court  a  certain  order  of  the  House 
of  Representatives  of  said  Commonwealth,  which  is  in  the  words 
following,  that  is  to  say  : 

"  In  the  House  of  Representatives,  February  4,  1813, 
"  Ordered,  that  the  Attorney  or  Solicitor  General  of  the  Com- 
monwealth be  requested  to  file  informations  in  the  nature  of  a 
quo  warranto,  to  know  by  what  authority  the  Hon.  Samuel 
Fowler  exercises  the  office  of  Judge  of  Probate  of  Wills  &c.  in 
the  county  of  Hampden,  and  also  Chief  Justice  of  the  Court  of 
Sessions  in  said  county;  and  also  by  what  authority "  [c?iyer5 
other  persons,  naming  them,  exercise  sundry  offices  in  said 
county].  Whereupon  the  said  Solicitor  General,  by  virtue  of 
the  power  and  authority  of,  and  in  compliance  with  said  order 
of  the  House  of  Representatives,  and  of  the  request  therein  con- 
tained, gives  the  said  Court  to  understand  and  be  informed,  that 
Samuel  Fowler,  of  Westfied,  in  the  said  county  of  Hampden, 
Esq.  for  the  space  of  six  months  now  last  past,  hath  used  and 
exercised,  and  still  doih  use  and  exercise,  the  office  of  Judge  of 
Probate  of  Wills  and  granting  administrations  upon  intestate  es- 
tates, in  the  said  county  of  Hampden,  without  any  warrant,  or 
lawful  authority  therefor  :  which  said  office,  and  the  powers, 
autlioiiiies,  and  emoluments  to  that  office  appertaining,,  the  said 
Samuel  Fowler,  Esq.  during  all  the  lime  aforesaid,  hath  usurp- 
ed, and  still  doth  usurp,  upon  the  government  of  the  said  Com- 
monwealth ;  to  the  great  damage  and  prejudice  of  the  lawful 
authority  thereof. 

Whereupon  the  said  Solicitor  General  prays  the  advice  of  the 


franchises,  whether  created  by  charter  or  by  a  statute  of  the  legislature,  may  be 
prosecuted  under  the  authority  of  the  legislature,  to  be  exercised  in  each  par- 
ticular case,  or  by  the  Attorney  or  Solicitor  General,  acting  ex  officio  in  behalf 
of  the  Commonwealth,  and  can  be  prosecuted  in  no  other  way.  Common' 
wealth  V.  Union  Ins.  Co.  in  JVewburyport,  3  Mass.  R.  230. 

If  a  person  be  appointed  to  a  public  office  by  the  governor,  when  there  is  no 
such  office  in  existence,  and  he  claims  to  hold  it  by  virtue  of  such  appointment, 
after  the  office  has  been  created,  he  may  be  removed  upon  information  quo 
warranto.     Commonwealth  v.  Fowler,  10  Mass.  R.  300- 

As  where  the  legislature  passed  an  act,  erecting  a  number  of  towns  into  a 
new  county,  and  provided  that  the  act  should  be  in  force  after  a  particular  day, 
but  made  no  provision  for  appointments  to  office  within  such  county,  before  the 
act  came  into  operation,  it  was  held  that  such  appointments,  before  the  act 
came  into  operation,  were  unconstitutional  and  void  ;  and  that  persons  claiming 
to  hold  offices  under  such  appointments  were  liable  to  be  removed  upon  infor- 
mation quo  warranto.     Commonwealth  r.  Fowler,  10  Mass.  R.  300. 


272  INFORMATIONS  QUO  WARRANTO. 

Court  here  in  the  premises  ;  and  for  due  process  of  low  ngainst 
the  said  Samuel  Fowler,  Esq  ,  in  this  bcliall  to  he  made  and 
ordered,  to  answer  to  the  said  Cominonueallh,  by  what  war- 
rant he  claims  to  have,  use,  exercise,  and  enjoy  the  aforesaid 
office. 

DANIEL  DAVIS,  Solicitor  General. 

To  this  information,  after  a  motion  to  quash  it,  which  was 
overruled,  the  respondent  fdcd  the  following  plea. 

That  heretofore,  on  and  before  he  exercised  or  assumed 

to  exorcise  the  said  office  of  Jiuls^e  o(  Probate  of  wills  &c.,  he 
was  duly  and  lej^nlly  nomin;Ucd  and  appf)inled  to  the  same 
office,  by  his  Excellency,  Elbridge  Gerry,  Esq.,  then  and  long 
afterwards  Governor  of  the  said  Commonwealih  of  Massa- 
chusetts, by  and  with  the  advice  of  council ;  and  was  duly  cotn- 
rnissioned  thereto,  as  by  the  commission  signed  by  the  said 
governor,  and  attested  by  the  secretary  of  the  Comnionwealib, 
with  the  great  seal  of  tlie  Commonwealih  aflixed  thereto,  which 
the  said  Samuel  Fowler  brings  here  into  Court,  for  the  inspection 
of  the  Court,  is  manifest  and  appears. 

And  the  said  Samuel  avers,  that  after  he  was  so  appointed 
and  commissioned  as  aforesaid,  and  before  he  entered  on  the 
discharge  of  the  business  of  said  office,  viz.,  on  the  third  day  of 
May  in  the  same  year,  he  took  and  subscribed  the  declaration  of 
oaths  prescribed  by  the  constitution  of  said  Commonwealth,  and 
the  laws  of  the  United  States,  to  be  taken  and  subscribed  by  any 
person  appointed  or  commissioned  to  any  judicial,  executive, 
military,  or  other  office  under  the  government,  before  his  Honor, 
WilfuHn  Gray,  Esq.,  then  being  Lieutenant  Governor  of  said 
Commonwealth,  and  then  being  duly  authorized  to  administer 
the  same,  as  by  the  certificate  of  the  snid  Lieutenant  Governor, 
on  the  same  commission,  is  manifest  and  appears.  Without  this, 
that  the  said  Samuel  usurped  upon  the  said  Commonwealth,  as 
in  and  by  the  said  information  above  is  supposed.  All  which 
the  said  Samuel  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment &ic. 

To  this  plea,  the  Solicitor  General  demurred  generally  ;  and 
the  respondent  joined  in  demurrer.  It  was  argued  and  finally 
decided  in  favor  of  the  government. 


INFORMATIONS  QUO  WARRANTO.  273 


Form  of  a  Judgment  upon  an  Information  in  the  JVature  of  a 
Quo  Warranto  :  Entered  by  Order  of  Court  iii  the  Case  of 
The  Commonwealth  v.  Fowler.^ 

"  It  is  considered  by  the  Court  here,  that  S.  F.,  Esq.,  do 
not,  in  any  manner,  intermeddle  or  concern  himself  in  and  about 
the  holding  of,  or  exercising  the  said  office  of  judge  of  probate 
of  wills  and  granting  administration  on  the  estates  of  persons 
deceased,  in  the  said  county  of  Hampden,  in  the  said  information 
specified,  in  virtue  of  the  said  supposed  commission  by  him 
mentioned  in  his  plea  in  bar  aforesaid  ;  but  that  the  said  S.  F., 
Esq.,  be  absoluteiy  forejudged  and  excluded  from  holding  and 
exercising  the  same  office  ;  and  that  the  said  Commonwealth 
recover  costs,  taxed  at,"  he. 


The  People  of  the  State  of  New  York,  ex  relatione,  The  Attor- 
ney General,  against  The  Utica  Insurance  Company.^ 

Be  it  remembered,  that  [here  state  the  caption  of  the  informa- 
tion according  to  the  form  in  the  court  where  it  is  to  he  used.'\ 

Martin  Van  Buren,  Attorney  General  of  the  people  of  the 
State  of  New  York,  who  sues  for  the  said  people  in  this  behalf, 
comes  here  before  the  justices  of  the  people  of  the  state  of 
New  York,  of  the  Supreme  Court  of  Judicature  of  the  same 
people,   on  at  and   for  the   said   people   gives  the 

said  court  here  to  understand  and  be  informed,  tiiat  the  Utica 
Insurance  Company,  for  the  space  of  six  months  now  last  past, 
and  more,  have  used,  and  still  do  use,  without  any  warrant, 
charter,  or  grant,  the  following  liberties,  privileges,  and  fran- 
chises, to  wit,  that  of  becoming  proprietors  of  a  bank  or  fund,  for 
the  purpose  of  issuing  notes,  receiving  deposits,  making  dis- 
counts, and  transacting  other  business  which  incorporated  banks 
may  and  do  transact  by  virtue  of  their  respective  acts  of  incorpo- 
ration. And  also  that  of  actually  issuing  notes,  receiving  depos- 
its, making  discounts,  and  carrying  on  banking  operations,  and 
other  monied  transactions,  which  are  usually  performed  by  in- 
corporated banks,  and  which  they  alone  have  a  right  to  do  ;  of  all 


1  11  Mass.  R.  339.     See  also  10  Mass.  R.  290. 

2  15  Johns.  R.  35. 

35 


274  INFORMATIONS  QUO  WARRANTO. 

which  liberties,  privileges,  and  franchises  aforesaid,  the  said 
Uiica  Insurance  Company,  during  all  the  time  aforesaid,  have 
usurped,  and  still  do  usurp  upon  the  said  people  ;  to  their  great 
damage  and  prejudice.  Whereupon  the  said  Attorney  General 
of  the  people,  prays  advice  of  the  said  court  in  the  premises, 
and  due  process  of  law  against  the  said  Utica  Insurance  Compa- 
ny, in  this  behalf  to  be  made,  to  answer  to  the  said  people,  by 
what  warrant  they  claim  to  have,  use,  and  enjoy  the  liberties, 
privileges,  and  franchises  aforesaid.^ 

The  Plea. 

And  now  at  this  day,  to  wit,  on  come  the  said  Utica 

Insurance  Company,  by  Nathan  Williams,  their  Attorney,  and 
having  heard  the  said  information,  complain,  that  they  are,  by 
color  thereof,  grievously  used  and  disquieted,  and  this  unjustly; 
because,  protesting  that  the  said  information  and  the  matters 
therein  contained  are  insufficient  in  law ;  to  which  information 
the  said  Utica  Insurance  Company  are  not  bound  by  the  law  of 
the  land  to  answer  ;  yet  for  plea  in  this  behalf,  the  said  Utica 
Insurance  Company  say,  that  by  a  certain  act  of  the  legislature 
of  the  people  of  this  State,  passed  on  the  29th  day  of  ?Jarch, 
1816,  they,  the  said  Utica  Insurance  Company,  were  constituted 
and  declared  to  be,  from  the  passing  of  the  said  act,  until  the 
1st  Tuesday  of  July,  A.  D.  1836,  a  body  politic  and  corporate 
in  fact  and  in  name,  and  by  the  name  of  "  The  Utica  Insurance 
Company."  And  the  said  Utica  Insurance  Company  further  say, 
that  by  force  of  the  said  act  of  the  said  legislature,  and  the 
provisions  thereof,  they  still  continue  to  be,  and  are,  a  body  pol- 
itic and  corporate,  in  fact  and  in  name,  and  are  entitled  to  do  all 
lawful  acts,  and  to  enjoy  all  the  rights,  privileges,  franchises,  and 
immunities  allowed  to  them,  or  conferred  on  them,  by  the  act 
aforesaid,  or  by  the  law  of  the  land.  By  virtue  whereof,  the 
said  Utica  Insurance  Company,  for  all  the  lime  in  the  said 
information  mentioned,  have  used,  and  still  do  use,  the  rights, 
liberties,  privileges,  and  franchises  of  becoming  proprietors  of  a 
bank  or  fund,  for  the  purpose  of  issuing  notes,  receiving  deposits, 
making  discounts,  and  transacting  other  business,  which  in- 
corporated banks  may  do  and  transact  by  virtue  of  their  acts  of 
incorporation,  by  investing  in  the  said  bank  and  business  the  funds 
of  the  said  Utica  Insurance  Company,  which  the  business  of 
insurance,  in  said  act  mentioned,  did  not  actively  employ ;  and 


*  See  note  (1)  at  the  end  of  the  following  plea. 


INFORMATIONS  QUO  WARRANTO.  275 

the  said  Utica  Insurance  Company  have,  during  all  the  said  time, 
used,  and  still  do  use,  the  liberties  and  privileges  of  actually  issu- 
ing notes,  other  than  notes  which  grant  or  stipulate  to  pay  annui- 
ties upon  any  life  or  lives;  and  of  actually  issuing  notes,  receiv- 
ing deposits,  making  discounts,  and  carrying  on  banking  opera- 
tions, and  other  nionied  transactions,  which  are  usually  performed 
by  incorporated  banks.  [The  defendants  then  go  on  to  traverse 
every  fact  alleged  in  the  information  ;  and  traverse  the  whole,  by 
denying  that  they  have  usurped  the  liberties,  privileges,  and  fran- 
chises upon  the  people  ;  and  pray  for  what  is  tantamount  to 
being  metamorphosed  from  an  insurance  company,  into  a  bank.Y 

[To  this  plea,  the  Attorney  General  very  naturally  demurred, 
and  the  Court,  still  more  naturally,  adjudged  it  bad.] 


*  In  this  case  the  court  decided,  among  other  things, 

1.  That  an  information  in  the  nature  of  a  quo  warranto  lies  against  an  in- 
corporated company,  for  carrying  on  banking  operations,  without  authority  from 
the  legislature. 

2.  An  information  in  the  nature  of  a  quo  warranto  for  usurping  a  franchise, 
needs  show  no  title  to  the  people  in  the  franchise  ;  but  it  lies  with  the  defendant 
to  show  his  warrant  for  exercising  it. 

3.  A  thing  within  the  intention,  is  as  much  within  the  statute,  as  if  it  were 
within  the  letter ;  and  a  thing  within  the  letter,  is  not  within  the  statute,  if 
contraiy  to  the  intention  of  it. 

4.  A  statute  restraining  any  person  from  doing  certain  acts,  applies  equally  to 
corporations  or  bodies  politic,  although  not  mentioned. 

5.  An  act  to  incorporate  an  insurance  company  does  not  authorize  the  com- 
pany to  institute  a  bank ;  and  if  they  do,  they  usurp  a  franchise  ;  and  on  an 
information  in  the  nature  of  a  quo  warranto  being  filed,  judgment  of  ouster  will 
be  rendered  against  them. 


276  PLEAS  &.C.  IN  CRIMINAL  CASES. 


PLEADINGS  IN  CRIMINAL  CASES. 

It  remains  to  add  to  this  collection  the  several  pleas  in 
use  in  criminal  prosecutions.  These  are,  —  Pleas  to  the  Juris- 
diction of  the  Court ;  Pleas  in  Abatement ;  and  Special  Pleas 
in  Bar ;  Replications,  Demurrers,  and  Joinder  in  Demurrers  ; 
Certiorari ;  Writ  of  Error,  and  Writs  of  Habeas  Corpus. 

Plea  to  the  Jurisdiction  of  the  Court, 

And  the  said  C.  D.  in  his  proper  person  comes  into  Court 
here,  and  having  heard  the  said  indictment  read,  saith,  that  the 
Court  here  ought  not  to  take  cognizance  of  the  offence  in  the 
said  indictment  above  specified  ;  because,  protesting  that  he  is  not 
guilty  of  the  same,  nevertheless  the  said  C.  D.  saith  [^proceed  here 
to  state  the  matter  of  the  plea;  ]  and  this  the  said  C.  D.  is  ready 
to  verify.  Wherefore  he  prays  judgment,  if  the  court  here  will 
or  ought  to  take  cognizance  of  the  indictment  aforesaid  ;  and  that 
he  may  be  discharged,  and  permitted  to  go  without  day. 

Replication  to  the  above  Plea. 

And  hereupon  the  said  Attorney  General,  on  behalf  of  the 
said  Commonwealth,  says,  that  notwithstanding  any  thing  by  the 
said  C.  D.  above  in  pleading  alleged,  this  Court  ought  not  to  be 
precluded  from  taking  cognizance  of  the  indictment  aforesaid, 
because  he  says,  [here  state  the  matter  of  the  replication,  conclud- 
ing to  the  country,  or  with  a  verification,  as  the  replication  may 
require;  ]  wherefore  he  prays  judgment,  that  the  said  C.  D.  may 
be  held  to  answer  to  said  indictment. 

Plea  in  Abatement  for  a  Misnomer. 

And  now  James  Long,  who  in  this  indictment  is  called  and 
indicted  by  the  name  of  George  Long,  in  his  proper  person 
comes  into  Court  here,  and  having  heard  this  indictment  read, 
saith  that  his  name  is  James  ;  that  he  was  baptized  by  the  name 
of  James  ;  and  that  by  the  Christian  name  of  James  hath  always 
since  his  baptism  hitherto  been  known  and  called ;  without  this, 
that  he  the  said  James  Long,  now  is,  or  hitherto  hath  been, 


PLEAS  &1C.    IN  CRIMINAL  CASES.  277 

called  or  known  by  the  said  name  of  George,  as  by  the  said 
indictment  is  supposed ;  and  this  the  said  James  Long  is  ready 
to  verify  ;  wherefore  he  prays  judgment  of  said  indictment,  and 
that  the  same  may  be  quashed.^ 

Replication  to  the  Plea  of  Misnomer.  • 

And  hereupon  the  said  Attorney  General,  on  behalf  of  said 
Commonwealth,  saith,  that  the  said  indictment,  by  reason  of  any 
thing  by  the  said  James  Long  in  his  plea  aforesaid  above 
alleged,  ought  not  to  be  quashed  ;  because  he  saith,  that  the 
said  James  Long  was,  long  before,  and  at  the  time  of  the  prefer- 
ring of  said  indictment,  and  still  is,  known  as  well  by  the  name  of 
George  Long,  as  by  the  name  of  James  Long ;  and  this  the 
said  Attorney  General  for  the  said  Commonwealth  prays  may 
be  inquired  of  by  the  country.^ 


PLEAS  IN  BAR,  IN  CRIMINAL  CASES. 

Special  pleas  in  bar  go  to  the  merits  of  the  prosecution,  and 
give  a  reason  why  the  party  ought  not  to  answer  at  all.  These 
are  of  three  kinds,  namely,  a  Former  Acquittal ;  a  Former 
Conviction ;  and  a  Pardon.^  The  plea  of  a  Former  Attainder 
is  not  known  in  this  country. 


'  It  is  usual,  but  not  essential,  that  the  plea  should  state  that  defendant  was 
baptized  by  such  a  name.  Alleging  that  it  is  his  name,  and  that  by  that  name 
he  has  always  been  called  and  known,  is  sufiBcient.  6  Mod.  116;  1  Salk.  6. 
For  a  plea  of  surname,  see  Archib.  46 ;  Cro.  C.  C.  46,  (6th  Ed.) 

-  Archib.  46,  47.  See  2  Stark.  704,  705,  for  a  plea  in  abatement  for  a  wrong 
addition,  and  that  defendant  has  no  addition. 

3  1  Chitt.  452 ;  4  Bla.  Cora.  328,  329.  The  form  and  nature  of  these  pleas 
are  stated  in  1  Chitt.  432,  to  which,  together  with  the  authorities  there  quoted, 
the  reader  is  referred. 


278  PLEAS  he.  IN   CRIMINAL  CASES. 


Plea  of  Auterfois  Acquit} 

And  the  said  A.  B.  in  his  proper  person  comes  into  Court 
here,  and  having  heard  the  said  indictment  read,  saith,  that  the 
Commonwealth  ought  not  further  to  prosecute  tlie  said  indictment 
against  him  the  said  A.  B.,  hecause  he  saith,  that  heretofore,  to 
wit,  at  tlie  Supreme  Judicial  Court,  hohlen  at  &c.,  [here  recite 
the  record  of  the  former  judgment  and  acquittal,  verbatim,  from 
the  beginning  to  the  conclusion  of  it;  then  proceed  thus,']  as  by 
the  record  thereof  more  fully  and  at  large  appears  ;  which  said 
judgment  still  remains  in  full  force  and  effect.  And  the  said 
A/B.  avers,  and  in  fact  sailh,  that  he  the  said  A.  B.,  and  the  said 
A.  B.  so  indicted  and  acquitted  as  aforesaid,  are  one  and  the 
same  person,  and  not  other  and  different  persons ;  and  that  the 
(felony  or  larceny)  of  which  the  said  A.  B.  was  indicted  and 
acquitted  as  aforesaid,  and  the  (felony  or  larceny)  of  which  the 
said  A.  B.  is  now  indicted,  are  one  and  the  same,  and  not 
different  (felonies  or  larcenies ; )  and  this  the  said  A.  B.  is  ready 
to  verify  ;  wherefore  he  prays  judgment,  and  that  he  may  be 
dismissed  and  discharged,  by  the  Court  here,  from  the  premises 
in  the  present  indictment  specified. 

Plea  of  Auterfois  Convict. 

And  the  said  A.  B.  in  his  proper  person  comes  into  Court 
here,  and  having  heard  the  said  indictment  read  to  him,  saith, 
that  the  Commonwealth  ought  not  further  to  prosecute  the  said 
indictment  against  him  the  said  A.  B.,  because  he  saith,  that 
heretofore,  to  wit,  at  the  Supreme  Judicial  Court,  holden  &;c., 
[here  recite  the  record  of  the  former  judgment  and  conviction 
verbatim ;  then  proceed  as  folloivs,']  as  by  the  record  thereof 
more  fully  and  at  large  appears ;  which  said  judgment  still 
remains  in  full  force  and  effect.  And  the  said  A.  B.  avers,  that 
he  the  said  A.  B.,  and  the  said  A.  B.  so  indicted  and  convicted 
as  last  aforesaid,  are  one  and  the  same  person,  and  not  other  or 
different ;  and  that  the  offence  (felony  or  larceny)  of  which  he 
the  said  A.  B.  was  so  indicted  and  convicted  as  aforesaid,  and 
the  offence  (felony  or  larceny)  of  which  he  is  now  indicted,  are 
one  and  the  same,  and  not  different  offences,  (felonies  or  larce- 
nies; ]  and  this  the  said  A.  B.  is  ready  to  verify  ;  wherefore  he 


1  This  plea  is  taken  from  Aichb.  52,  53. 


PLEAS   &:C.   iN  CRIMINAL  CASES,  279 

prays  judgment,  and  that  he  may  be  discharged  and  dismissed 
by  the  court  here  from  the  premises  in  the  present  indictment 
specified. 

Demurrer  to  an  Indictment. 

And  the  said  A.  B.,  in  his  own  proper  person,  comes  into 
Court  here,  and  having  heard  the  said  indictment  read,  saith,  that 
the  said  indictment,  and  the  matters  and  things  therein  contained, 
in  manner  and  form  as  the  same  are  therein  stated  and  set  forth, 
are  not  sufficient  in  law ;  and  tliat  he  the  said  A.  B.  is  not 
bound  by  the  laws  of  the  land  to  make  answer  to  the  same  ;  and 
this  he  is  ready  to  verify ;  wherefore,  for  want  of  a  sufficient 
indictment  in  this  behalf,  the  said  A.  B.  pra3^s  judgment,  and 
that  he  may,  "by  the  Court  liere,  be  dismissed  and  discharged 
from  the  premises  in  the  said  indictment  specified. 

Joinder  in  Demurrer. 

And  C.  D.,  Attorney  General,  Sic,  who  prosecutes  in  this  case 
for  the  Commonwealth,  saith,  that  the  said  indictment,  and  the 
matters  and  things  therein  contained,  in  manner  and  form  as 
therein  stated  and  set  forth,  are  sufficient  in  law  to  compel  the 
said  A.  B.  to  answer  the  same  ;  and  this  the  said  C.  D.,  who 
prosecutes  as  aforesaid,  is  ready  to  verify  and  prove,  as  the  Court 
here  shall  direct  and  award. 

Wherefore,  inasmuch  as  the  said  A.  B.  hath  not  answered  to 
the  said  indictment,  nor  in  any  manner  denied  the  same,  the  said 
C.  D.,  for  the  said  Commonwealth,  prays  judgment;  and  that 
the  said  A.  B.  may  be  convicted  of  the  premises  in  the  said  in- 
dictment specified.^ 


1  This  demurrer  and  joinder  are  taken  from  Archib.  56.  See  remarks  there 
upon  the  effect  of  the  demurrer,  and  the  authorities  there  quoted,  viz.,  1  Saun- 
ders, 285,  note  (5)  ;  1  T.  R.  316. 


280  PLEA  OF  PARDON. 


PLEA  OF  PARDON. 

A.  B.,  of  Sic,  comes  here  into  Court,  in  his  proper  person, 
and  states  to  the  Court,  that  at  the  Supreme  Judicial  Court 
holden  at  [here  set  forth  the  indictment  and  proceedings  upon 
ivhich  he  was  convicted :  ]  and  now  the  said  A.  B.  comes  into 
Court,  and  by  the  said  Court  is  asked  if  he  haih  any  thing  to 
say  why  judgment  and  sentence  should  not  pass  against  him 
upon  the  said  indictment ;  who  thereupon  saith,  that  after  the 
conviction  of  him  the  said  A.  B.  of  the  crime  aforesaid,  in  man- 
ner aforesaid,  as  in  the  said  pica  is  mentioned,  to  wit,  on 
a  free  pardon  of  the  said  crime  set  forth  in  said  indictment  was 
granted  to  iiim  by  his  Excellency  Levi  Lincoln,  Governor  of  the 
said  Commonwealth,  as  appears  by  the  said  charter  of  pardon, 
under  the  great  seal  of  said  Commonwealth,  bearing  date  the 
day  of  and  which  the  said  A.  B.  has  here  ready  in 

Court  to  be  produced.  Wherefore,  by  reason  of  the  said  par- 
don, the  said  A.  B.  prays,  that  by  the  Court  here,  he  may  be 
dismissed  and  discharged  from  the  premises  in  tlie  said  indict- 
ment specified. 

Note.  It  is  remarkable  that  there  are  so  few  regular  prece- 
dents for  a  plea  of  pardon,  in  the  modern  compilations  of  prece- 
dents in  the  English  books.  There  is  one  in  Rastall's  Entries, 
p.  455,  from  which  a  precedent  might  be  extracted  ;  but  in  its 
present  state  it  is  obsolete.  There  is  another  in  Gude's  Prac- 
tice, vol.  ii.  p.  618,  which  may  be  more  easily  adapted  to  the 
form  which  modern  improvements  require. 

The  foregoing  precedent  is  substantially  conformable  to  the 
plea  of  pardon  in  the  case  of  Rex  v.  Hampden,  reported  in 
1  Trem.  P.  C.  308,  31 1.  The  judgment  in  that'case  is  unut- 
terably  revolting,  and  ought  not  to  stain  the  records  of  any 
Christian  country. 

The  plea  of  pardon  must  set  out  the  pardon  at  large,  with  a 
profert,  and  must  allege  it  to  be  under  the  seal  of  the  govern- 
ment.    Archb.  54  ;  1  B.  &;  P.  199. 

If  there  be  any  variance  in  the  description  of  the  offence  or 
party,  between  the  pardon  and  the  indictment,  it  may  be  made 


PLEA  OF  PARDOxV.  281 

good  by  averments  of  identity,  in  the  same  manner  as  in  the 
plea  of  auterfois  acquit.  Archib.  54  ;  Bac.  Abr.  Pardon,  G.  2  ; 
1  Chitt.  468. 

In  England,  a  pardon  may  be  granted  either  before  or  after 
conviction.  But  in  Massachusetts,  this  can  only  be  done  after 
conviction.  The  constitution  of  that  State,  chap.  2,  art.  8,  pro- 
vides, that  "no  charter  of  pardon  granted  before  conviction  shall 
avail  the  party  pleading  the  same,  noivvithstanding  any  particular 
or  general  expressions  contained  therein,  descriptive  of  the 
offence  or  offences  intended  to  be  pardoned." 

There  is  an  "  ancient  custom  "  in  England  o(  mvinsr  srioves  to 
the  judges  and  their  officers,  which  is  compounded  for  by  a  fee 
of  four  guineas  to  each  of  the  judges  ;  and  upon  which  they  may 
insist,  before  they  allow  a  pardon  !  Hawk.  b.  2,  c.  37,  §  71  ; 
1  Sid.  452;  Kel.  25 ;  Bac.  Abr.  Pardon,  G.  2.  As  strange  as 
it  may  seem,  this  "  ancient  custom  "  is  stated  in  black  and 
white  in  Hawkins,  Bacon's  Abr.,  and  several  other  authorities. 
How  can  a  judge  in  any  country  refuse  to  allow  a  pardon  which 
has  been  granted  by  the  supreme  authority  of  the  State,  consti- 
tutionally exercised  ?  If  persisted  in,  it  would  be  a  direct  act  of 
disobedience  to  such  authority  ;  and  upon  a  principle  equally 
rational,  legal,  and  constitutional,  the  king  u)ight  reverse  a  judg- 
ment, by  his  own  decree,  of  the  highest  judicial  tribunal  in  his 
kingdom. 

30 


282  CERTIORARI. 

CERTIORARI. 

To  the  Court  of  Common  Pleas.^ 

Commonwealth  of  Massachusetts. 

Suffolk  ss.  To  our  Justices  of  our  Court  of  Common  Pleas,  in 
our  county  of  Suffolk.     Greeting. 

VVe  being  willing,  for  certain  causes,  to  be  certified  of  the 
proceedings  in  a  certain  prosecution  [Jiere  insert  the  indictment 
and  process^  and  ibe  judgment  and  sentence  thereon  had  and 
given,  command  you,  that  the  proceedings  in  the  indictment  and 
prosecution  aforesaid,  and  the  sentence  thereon,  with  all  things 
touching  the  same,  fully  and  entirely  as  the  same  remain  before 
you,  by  whatsoever  name  or  names  the  party  defendant  may  be 
called  therein,  to  send  to  our  Supreme  Judicial  Court,  to  be 
holden  at  B.,  in  and  for  our  said  county  of  S.,  on  the 
under  your  hands  and  seals,  together  with  this  writ ;  that  we  may 
further  cause  to  be  done  thereupon,  what  of  right  and  according 
to  law,  ought  to  be  done. 

Witness,  L.   S.,  Esq.,  at  said  B.,  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 

J.  C,  Clerk. 

*  A  writ  of  certiorari  is  an  original  writ,  issuing  from  the  Supreme  Judicial 
Court,  in  the  name  of  the  Commonwealth,  to  the  judges  and  officers  of  inferior 
courts,  commanding  them  to  return  the  records  of  a  cause  depending  before 
them,  in  order  that  the  party  may  have  more  sure  and  speedy  justice.  1  Chitt. 
371 ;  Bac.  Abr.  Certiorari,  A,  and  other  authorities  there  referred  to. 

It  is  left  to  the  discretion  of  the  Court  either  to  deny  or  grant  a  certiorari  at  the 
prayer  of  an  individual.  In  the  case  of  an  individual,  there  must  be  special 
ground  laid  to  induce  the  court  to  grant  it. 

But  the  right  to  it  is  said  to  be  absolute  when  prosecuted  by  the  Attorney 
General,  ex  officio,  on  behalf  of  the  government ;  and  when  prosecuted  by  a 
private  person,  in  the  name  of  the  government,  it  also  issues,  unless  sufficient 
cause  is  shown  against  it.  Hawk.  b.  2,  c.  27,  §  27,  note  (2)  ;  4  Burr.  2458  ; 
Strange,  583,  549. 


WRIT  OF  ERROR.  283 


WRIT  OF  ERROR. 


Writ  of  Error  (coram  nobis)  in  a  criminal  Case,  where  Judg- 
ment had  been  rendered  in  the  Supreme  Judicial  Court} 

Commonwealth  of  Massachusetts. 

Suffolk  ss.  To  our  Justices  of  our  Supreme  Judicial  Court, 
Greeting, 

Because  in  the  record  and  proceedings,  and  also  in  the  ren- 
dition of  judgment  on  an  indictment  against  A.  B.,  of  for  a 
misdemeanor,  [here  insert  the  indictment  and  case  complained  o/",] 
as  it  is  said,  manifest  error  hath  happened  ;  to  the  great  damage 
of  him  the  said  A.  B.,  as  by  his  complaint  we  are  informed  :  We, 
willing  that  the  error>  if  any  there  has  been,  should  be  duly 
corrected,  and  full  and  speedy  justice  done  therein,  command 
you,  that  the  records  and  proceedings  aforesaid,  which  now 
remain  before  you,  as  it  is  said,  you  cause  to  be  done,  to  cor- 
rect that  error,  what  of  right  and  according  to  law  shall  be 
to  be  done. 

Witness,  L.  S.,  Esq.,  at  B.,  the  day  of  in  the 

year  of  &tc. 

J.  C,  Clerk. 

Assignment  of  Errors. 

And  now  the  said  A.  B  ,  on  at  the  same  term,  comes 

in  the  proper  person  of  him  the  said  A.  B.,  and  saith,  that  in  the 
record  and  process  aforesaid,  and  also  in  giving  the  judgment 
aforesaid,  there  is  manifest  error  in  this,  to  wit,  [here  assign  the 
errors  ;  ]  whereas  [here  state  the  cause  of  the  error :  ]  wherefore 
he  the  said  A.  B.  prays  judgment,  and  that  the  judgment  afore- 
said, for  the  errors  aforesaid,  and  others  in  the  record  and  pro- 

*  A  writ  of  error  is,  in  this  country,  considered  a  writ  of  right.  But  it  is  said 
in  the  English  authorities,  that  it  cannot  issue,  even  with  probable  cause,  with- 
out the^af  of  the  Attorney  General,  or  an  express  warrant  from  the  king.  4  Burr. 
2550 ;  2  Hawk.  c.  50,  §  12 ;  1  Stark.  Cr.  PI.  352.  But  it  is  remarked  by 
Burr.  &  Stark,  on  the  pages  above  quoted,  that  when  the  offence  is  of  an  infe- 
rior nature,  and  there  is  probable  cause,  this  writ  is  grantable  of  right,  and  not 
merely  ex  gratia.  It  is  diflScult  to  conceive,  that  in  a  country  of  laws,  the 
same  right  can  be  granted  to  one  citizen  and  withheld  from  another.  Upon  the 
foregoing  principle,  however  erroneous  a  judgment  may  be,  it  cannot  be  cor- 
rected but  by  the^  of  the  Attorney  General,  or  by  warrant  from  the  king. 


284  WRITS  OV   HABEAS  (CORPUS. 

cess  aforesaid  appearing,  being  found,  may  be  reversed,  annul- 
led, and  held  as  enlirely  void  ;  and  thai  the  said  A.  B.  may  be 
restored  to  all  things  which  he  has  lost,  by  occasion  of  the 
judgment  aforesaid,  and  that,  as  well  from  said  conviction  as  of 
the  indictment  aforesaid,  he  may  be   dismissed  and  discharged. 


WRITS  OF  HABEAS  CORPUS. 

Writ  of  Habeas  Corpus,  ad  Suhjiciandum} 
Commonwealth  of  Massachusetts. 
Suffolk  ss.  To  Greeting. 

We  command  yon,  that  the  body  of  A.  B.,  of  in  our 

prison,  under  your  custody,  [or  by  you  imprisoned  and  restrained 
of  his  liberty,  as  the  case  may  6e,]  as  it  is  said,  together  with  the  day 
and  cause  of  his  taking  and  detaining,  by  whatsoever  name  the  said 
A.  B.  shall  be  called  or  charged,  you  have  before  our  Justices 
of  our  Supreme  Judicial  Court,  holden  at  B.,  within  and  for  the 
county  of  S.,  immediately  after  the  receipt  of  this  writ ;  to  do 
and  receive  what  our  said  justices  shall  then  and  there  consider 
concerning  him,   in  this  behalf.     And  have  you  there  this  writ. 

Witness,  W.  C,  Esq.,  at  B.,  this  day  of  in  the 

year  of  our  Lord  he. 

Clerk. 

Habeas  Corpus,  ad  Testificandum.^ 

Commonwealth  of  Massachusetts. 

Suffolk  ss.  To  the  Sheriff  of  our  county  of  and  to  the 

under-keeper  of  our  gaol  in  said  county,  Greeting. 

We  command  you  that  the  body  of  A.  B.,  detained  in  our 
prison  under  your  custody,  as  it  is  said,  by  whatsoever  name  the 

'  Statute  of  Massachusetts  of  1784,  c.  72. 

*  Habeas  corpus,  ad  deliberandum  et  recipiendum,  to  remove  a  prisoner 
into  the  county  for  trial,  where  the  crime  was  committed.  See  1  Chitt.  132. 
No  precedent  for  this  writ  is  found  either  in  Chitty,  Starkie,  or  Tremaine. 


WRITS  or  HABEAS  CORPUS.  28 

said  A.  B.  shall  be  called,  you  have,  under  safe  and  secure 
conduct,  before  our  justices  of  our  Supreme  Judicial  Court, 
holden  at  within   and   for  the  said  county  of  imme- 

diately upon  the  receipt  of  this  writ ;  to  testify  in  a  certain  cause 
depending  in  our  said  Court,  and  then  and  there  to  be  heard, 
between  the  said  Commonwealth  and  one  C.  D. ;  and  that  im- 
mediately after  the  said  A.  B.  shall  then  and  there  hav-e  given 
his  testimony  before  our  said  justices,  that  you  return  him  the 
said  A.  B.  to  our  said  prison,  under  safe  and  secure  conduct. 
Hereof  fail  not;  and  have  there  this  writ.  Witness,  L.  S.,  Esq., 
at  the  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

J.  C,  Clerk. 


END  OF  THE  PRECEDENTS. 


APPENDIX   NOTES. 


Formerly  all  indictments  were  in  Latin,  but  now  they  are  in 
English,  in  England  as  well  as  in  this  country ;  that  they  should  be 
in  a  language  capable  of  being  understood  by  those  whose  Hves 
and  liberties  may  be  aitected  by  them. 

Figures  to  express  words  are  not  allowable  in  an  indictment ; 
but  numbers  must  be  expressed  in  words.  Forgery  is  an  ex- 
ception, when  a  fac  simile  of  the  instrument  forged  is  given  in 
the  indictment. 

An  indictment  for  an  offence  created  by  a  statute,  must,  by 
express  words,  bring  the  offence  within  the  description  used  in 
the  statute. 

If  a  statute  prohibit  an  act,  and  by  a  substantive  clause,  gives  a 
recovery  by  action  of  debt,  bill,  plaint,  or  information,  but  men- 
tions no  indictment,  the  party  may  be  indicted  upon  the  prohibi- 
tory clause.     2  H.  H.,  171. 

If  the  offence  be  at  common  law,  judgment  may  be  given  as 
an  offence  at  common  law,  though  the  indictment  concludes 
contra  formam  statuti;  for  this  conclusion  may  be  rejected  as 
surplusage.  2  Hawk.  c.  25,  §  116  ;  5  T.  R.  162  ;  Common- 
luealth  V.  Hoxey,  16  Mass.  R.  385 ;  Commonwealth  v.  Boynton, 
2  Mass.  R.  77. 

If  there  be  several  offenders  that  commit  the  same  offence, 
though  in  law  they  are  several  offences  in  relation  to  the  several 
offenders,  yet  they  may  be  joined  in  one  indictment.  2  H.  H. 
173. 


288  APPENDIX  NOTES. 

As  to  the  name  and  addition  of  the  party,  if  he  be  indicted  by 
a  wrong  name  or  addition,  and  he  plead  to  that  indictment  not 
guilty,  or  answer  to  it  by  that  name,  he  shall  not  be  allowed 
afterwards  to  plead  a  misnomer,  or  falsify  the  addition  ;  for  he  is 
concluded  by  his  plea  by  that  name.    2  H.  H.  175. 

Iftherebeno  addition,  yet  if  the  party  appears  and  pleads 
not  guilty,  without  taking  advantage  of  it,  he  shall  not  stop  his 
trial  or  judgment ;  for  by  such  appearance  the  indictment  is  af- 
firmed. 

The  addition  ought  to  be  to  the  substantive  name,  not  to  the 
alias  dictiis. 

But  in  an  indictment  for  felony  (murder),  there  must  be  "  then 
and  there"  to  the  stroke,  or  to  the  robbery;  for  the  day  and 
place  of  the  assault  are  not  sufficient.  It  is  usual,  therefore,  to  re- 
peat the  "  then  and  there  "  in  the  several  parts  of  the  act. 
2  H.  H.  178. 

A  mistake  in  not  laying  the  ofFence  on  the  very  same  day  on 
which  it  was  afterwards  proved  on  the  trial,  is  not  material  upon 
evidence.     2  Hawk.  236,  .(6th  Ed.) ;  2  H.  P.  C.  179. 

A  mistake  in  the  place  in  which  an  ofFence  is  alleged  to  be 
committed,  will  not  be  material  upon  evidence,  or  not  guilty 
pleaded,  if  the  fact  be  proved  in  some  other  place  in  the  same 
county.     2  Hawk.  237,  (6th  Ed.)  337,  (7th  Ed.) 

The  name  of  the  person  upon  whom  the  ofFence  is  committed. 
An  indictment  for  murder  "  of  a  certain  person  to  the  jurors 
aforesaid  unknown,"  is  good  ;  and  so  for  stealing  goods  "  of  a 
person  unknown."     2  H.  H.  181. 

There  is  no  need  of  an  addition  of  the  person  murdered  or 
robbed,  unless  there  be  a  plurality  of  persons  of  the  same  name, 
in  the  same  indictment.     2  H.  H.  181. 

The  number  and  value  of  the  things  stolen,  must  be  set  down 
in  the  indictment.     2  H.  H.  183. 

An  indictment  against  a  person  for  that  he  did  feloniously 
lead  away  a  horse,  without  saying  "  take,"  is  not  good. 

The  value  of  the  iveapon  or  deodand  need  not  be  alleged. 
This  ancient  doctrine  is  exploded  by  Foster  and  others. 


APPENDIX  NOTES.  289 

The  indictment  must  show  in  what  part  of  the  body  the  wound 
was  given. 

It  is  not  necessary  to  allege  that  the  party  "  was  in  the  peace 
of  the  Commonwealth."     Foster,  35 1 . 

The  length  and  depth  of  the  wound  should  be  described. 

It  is  necessary  to  allege  that  the  party  died  of  the  wounds 
given.  See  the  conclusions  in  the  indictments  for  murder  in  the 
preceding  collection  of  precedents. 

Joinder  of  offences.  It  is  no  objection  to  the  indictment  that 
the  punishment  for  one  of  the  offences  is  positive,  and  for  the 
other  discretionary.     Rex  v.  Darley,  4  East  Rep.  174. 

False  pretences,  SfC.  Any  material  variance  between  the 
pretence  alleged  and  proved,  will  vitiate  the  indictment ;  as, 
where  the  indictment  averred,  that  the  defendant  pretended  that 
he  had  paid  a  sum  of  money  into  a"^  bank  ;  and  in  evidence  it 
appeared  that  he  had  merely  pretended  that  the  money  had 
been  paid  into  the  bank.     Rex  v.  Plestoiv,  1  Camp.  194. 

Perjury.  Assignment  of  Perjury.  The  indictment  will  be 
supported  on  motion  in  arrest  of  judgment,  if  any  one  assignment 
of  perjury  be  good,  though  the  rest  are  vicious.  Rex  v.  Rhodes, 
2  Lord  Raym.  886. 

Ownership.  If  a  feme  sole  be  robbed,  and  marry  before  an 
indictment  is  found,  the  ownership  should  be  described  by  her 
maiden  name.     Leach,  GOG. 

The  court  can  only  take  notice  of  misrecitnls  of  a  private  act 
or  statute,  where  md  tiel  record  is  pleaded.  1  Lev.  206  ;  Doug. 
97;   1  Lord  Raym.  318;   1  Salk.  330. 

Strictness  and  certainty  required  in  indictments.  The  appli- 
cation of  this  rule  has  often  been  regretted  by  the  ablest  judges. 
Lord  Hcde  observed,  that  the  strictness  required  in  indictments 
was  grown  to  be  a  blemish  and  inconvenience  to  the  law,  and  the 
administration  thereof;  that  more  offenders  escape  by  the  over 
easy  ear  given  to  exceptions  to  indictments,  than  by  the  mani- 
festation of  their  innocence  ;  and  that  the  grossest  crimes  had 
gone  unpunished  by  reason  of  these  unseemly  niceties.  2  Hale, 
193.  This  opinion  has  been  confirmed  by  Lord  Xe»?/OM,  1  East, 
37 


290  APPENDIX   NOTES. 

314  ;  Lord  Ellenhorough,  5  East,  260,  and  2  M.  U  S.  386. 
And  Lord  Mansfield  has  declared  his  opinion,  that  it  was  almost 
as  bad  to  let  a  crime  go  unpunished,  as  to  permit  an  innocent 
man  to  suffer.      1  Leach,  3S3  ;  1  Chitt.  170,  171. 

An  indictment,  charging  a  defendant  with  stealing  "  a  bank 
note  of  the  value  of  ten  dollars,"  is  good  ;  as  the  term  "  bank 
note  "  necessarily  implies  a  note  for  the  payment  of  money.  1 
Mass.  R.  340. 

In  an  indictment  for  forging  a  bill  of  exchange,  it  is  not  ne- 
cessary to  insert  the  marks,  letters,  or  figures  used  in  the  margin 
of  the  bill  for  ornament,  or  the  more  easy  detection  of  forgeries  ; 
as  such  marks  or  ciphers  form  no  part  of  the  bill.  3  Johns. 
Cases,  299  ;  also,  1  Mass.  R.  G2,  208. 

When  an  instrument  is  set  forth  with  the  word  "  tenor,"  there 
must  be  no  variance  between  the  instrument  set  forth,  and  that 
given  in  evidence  ;  because  identity  is  intended  by  the  term.  3 
Salk.  225  ;  2  Leach,  661  ;   1  Chitt.  175. 

The  word  purport  may  be  adopted  instead  of  tenor.  2  East 
P.  C.  983  ;  Doug.  300. 

An  indictment  must  not  contain  abbreviations  or  figures.  But 
to  this  rule  there  is  an  exception  in  the  case  of  forgery,  wHere 
a/ac  simile  of  the  instrument  forged  must  be  given  in  the  indict- 
ment.    I  Chitt.  176  ;  2  Hale,  170 ;  Cr.  C.  C.  33. 

Another  rule  in  the  mode  of  stating  the  offence  is,  that  it  must 
not  be  in  the  disjunctive.  1  Chitt.  236  ;  Hawk.  b.  2,  c.  25, 
§  57  ;  Bac.  Abr.  Indictment,  G.  3.  As  where  the  indictment 
stated  that  the  prisoner  murdered,  or  caused  to  be  murdered. 
This  is  bad,  because  uncertain. 

Mere  clerical  or  grammatical  errors  will  not  vitiate,  unless 
they  change  the  word,  or  render  the  meaning  obscure.  1  Chitt. 
239;  5  T.  R.  317,  318. 

Technical  language  of  the  indictment.  Some  terms  are  so 
appropriated,  that  none  other,  however  synonymous,  are  capable 
of  doing  it.  While  there  are  others,  which,  though  usual,  are  not 
necessary  to  be  inserted.  Of  the  latter  is  the  following ;  that  the 
prisoner,  "  not  having  the  fear  of  God  before  his  eyes,  but  being 


APPENDIX  NOTES.  291 

moved  and  seduced  by  the  instigation  of  the  devil,"  ^  perpetrated 
the  crime.  There  is  no  authority  to  show,  that  the  omission  of 
them  would  be  material.  1  Chitt.  239,  210 ;  G  East,  472,  473, 
474. 

The  words,  "  by  force  and  arms,"  were  necessary  at  com- 
mon law,  in  indictments  for  offences,  amounting  to  an  actual 
disturbance  of  the  peace.  But  these  words  are  clearly  super- 
fluous, even  where  the  crime  is  of  a  forcible  nature.  I  Stark. 
85;  2  Lev.  221  ;  P.  Williams,  497. 

In  the  conclusion  of  the  indictment,  or  the  several  counts,  there 
are  sentences  in  common  use,  which  are  not  at  all  necessary. 
Of  this  description  are,  "  to  the  great  damage  "  of  the  party ; 
"  to  the  evil  example  of  all  others  in  the  like  case  offending  ; " 
and  "  to  the  great  displeasure  of  Almighty  God."  1  Chitt.  245  ; 
2  Ld.  Raym.  1462. 

Against  the  'peace.  Every  indictment  must  conclude  against 
the  peace  of  the  government  under  which  the  prosecution  takes 
place ;  as,  "  against  the  peace  of  said  Commonwealth  ;"  "  against 
the  peace  of  the  United  States  of  America  ; "  "  against  the  peace 
of  the  people  of  New  York,"  &c. 

The  words,  against  the  dignity,  are  immaterial.  1  Chitt. 
248 ;  2  Hale,  188  ;  Hawk.  b.  2,  c.  25,  §  94  ;  Cr.  C.  C.  43. 

Joinder  of  several  offences.  In  cases  of  felony,  no  more  than 
one  distinct  offence  at  one  time  should  be  charged  upon  the 
prisoner  in  one  indictment.  But  this  is  matter  of  prudence. 
For,  in  point  of  law,  there  is  no  objection  to  the  insertion  of  several 
distinct  felonies  of  the  same  degree  in  the  same  indictment,  against 
the  same  person.     1  Chitt.  253  ;  2  Hale,  173;  2  Leach,  1103. 

This  course  ought  to  be  confined  to  cases,  where  the  dif- 
ferent offences  were  committed  at  the  same  time,  and  might  con- 
stitute but  one  offence.  1  Chitt.  253 ;  2  East  P.  C.  935,  936  ; 
as  where  several  forged  receipts  or  bank  notes  were  uttered  at 
the  same  time. 

There  is  no  necessity  of  reciting  a  public  statute  in  an  indict- 
ment; for  the  judges  are  bound,  ex  officio,  to  take  notice  of  all 

*  There  is  not  a  precedent  in  this  volume  which  is  rendered  ludicrous  by  the 
inMertion  of  this  phrase. 


292  APPENDIX  NOTES. 

public  statutes.  1  Chitt.  27G,  277.  But  the  parts  of  a  private 
act,  upon  which  an  indictment  is  framed,  must  be  set  out  special- 
ly, the  same  as  other  facts,  and  a  variance  will  be  fatal.  1  Chitt. 
277  ;  2  Hale,  172  ;  Hawk.  b.  2,  c.  25,  §  103. 

Amend  mend  of  Indictments.  Indictments  cannot  be  amended, 
but  by  the  concurrence  of  the  grand  jury.  And  it  is  a  common 
practice  in  England  for  the  grand  jury  to  consent,  that  the  court 
shall  amend  all  matters  of  form,  altering  no  matter  of  substance. 
Cro.  C.  C.  44  ;  Hawk.  b.  2,  c.  25,  §  98 ;  Bac.  Abr.  Irulid' 
ment,  H.  11. 

Habeas  Corpus.  Although  this  writ  is  demandable  of  right, 
it  does  not  issue  as  a  mere  matter  of  course,  but  must  be  ob- 
tained by  motion  to  the  court  in  term  time,  and  by  application 
to  a  judge  in  vacation.  1  Chitt.  124;  3  Bl.  Com.  132;  Bac. 
Abr.  Habeas  Corpus,  B.  5. 

The  Supreme  Court  of  the  United  States  has  power,  under 
the  constitution  and  laws,  to  issue  a  habeas  corpus.  Ex  parte 
Burford,  3  Cranch,  448.  They  have  power  to  issue  a  habeas 
corpus,  ad  subjiciandum,  under  the  statute  of  the  United  States, 
but  have  no  common  law  power  for  that  purpose.  Ex  parte 
Bolman  and  Swartout,  4  Cranch,  75. 

In  Pennsylvania  a  penalty  of  £300  is  imposed  upon  any 
judge  who  shall  refuse  to  award  a  habeas  corpus,  according  to 
the  provisions  of  the  act  of  1785.     2  Smith's  Laws,  278. 

In  England,  if  the  officer  refuse  to  return  the  writ,  an  attach- 
ment will  immediately  issue.  5  T.  R.  89 ;  Bacon's  Abr. 
Habeas  Corpus,  B.  8-12. 

In  Massachusetts,  one  judge  of  the  Supreme  Court,  in  term 
time,  as  well  as  in  vacation,  is  authorized  and  required  to  award 
the  writ  of  habeas  corpus,  in  all  cases  required  by  the  constituiion 
and  laws  of  the  land,  returnable  forthwith.     Stat.  1808,  c.  80. 

Officers  refusing  or  neglecting  to  obey  the  writ,  unless  from 
necessity,  shall  forfeit  to  the  party  £100,  and  may  be  further 
punished  for  such  disobedience,  as  for  a  contempt,  and  be  com- 
pelled to  obedience  thereto  by  process  of  attachment.  Mass. 
Laws,  Stat.  1784,  c.  72,  §  7,  8. 


APPENDIX  NOTES.  29'J 

Certiorari.  The  Supreme  Judicial  Court  has  a  general 
power  to  correct  errors  in  the  proceedings  of  inferior  courts, 
either  by  wn't  of  error,  or  certiorari,  in  all  cases  where  another 
remedy  is  not  provided.     Savage  v.  Gulliver,  4  Mass.  R.  171. 

Where  the  proceedings  of  the  court  below  are,  in  any  stage 
of  them,  different  from  the  course  of  the  common  law,  the  only 
mode  of  correcting  errors  in  them  is  by  a  writ  of  certiorari. 
Commonwealth  v.  Ellis,  1 1  Mass.  R.  465  ;  JlJelvin  v.  Bridge, 
3  Mass.  R.  305  ;  4  Mass.  R.  670,  he. 

As  in  cases  or  the  maintenance  of  bastard  children.  Drown 
V.  Simpson,  2  Mass.  R.  445. 

Proceedings  before  a  justice  to  recover  a  fine  for  neglect  of 
military  duty.     4  Mass.  R.  239,  376,  670  ;,  5  Pvlass.  R.  406. 

So  to  correct  the  proceedings  of  the  Court  of  Sessions,  in 
laying  out  a  new  highway.  Commonivealth  v.  Coombs,  2  Mass. 
R.  489. 

To  remove  proteedings  of  the  Common  Pleas,  on  a  complaint 
by  the  owner  of  lands  overflowed  by  the  erection  of  a  mill-dam, 
as  they  are  not  according  to  the  course  of  the  common  law. 
6  Mass.  R.  398     3  Mass.  R.  184. 

Judgment  for  costs  cannot  be  rendered  upon  a  certiorari ;  but 
only  the  proceedings  affirmed  or  quashed.  11  Mass.  R.  465  ; 
3  Mass.  R.  305  ;  4  Mass.  R.  670 ;  5  Mass.  R.  420. 

A  certiorari  to  remove  an  indictment  for  a  forcible  entry  and 
detainer,  into  the  Supreme  Court,  is  grantable  of  course.  The 
People  V.  Runkell,  6  Johns.  R.  334. 

The  delivery  of  a  certiorari  to  a  justice  supersedes  his  powers, 
and  renders  all  subsequent  proceedings  coram  non  judice.  Cap 
V.  Shepherd,  2  Johns.  R.  27.  The  law  is  said  to  be  the  same 
in  Pennsylvania.     1  Chit.  391,  note. 

Penitential  confessions  of  an  offence  voluntarily  made  by  one 
member  of  a  church,  to  other  members  of  the  same  church,  may 
be  given  in  evidence  on  an  indictment  for  the  same  offence. 
Commonwealth  v.  Drake,  15  Mass.  R.I 61. 

In  a  libel  for  a  divorce  for  the  cause  of  adultery,  the  confes- 
sions of  the  libellee,  uncorroborated  by  other  circumstances,  are 
not  admissible  to  prove  the  fact  of  adultery.  Baxter  v.  Butler, 
1  Mass.  R.  346  j  Holland  v.  Holland,  2  Mass.  R.  154. 


294  APPENDIX  NOTES. 

The  alteration  of  a  record  may  be  proved  hy  parole  evidence, 
in  the  same  manner  as  any  other  facts.  Brier  v.  Woodbury 
et  al,  1  Pick.  362. 

Accessories.  In  crimes  under  the  degree  oi  felony,  there  can 
be  no  accessories ;  but  all  persons  concerned  therein,  if  guilty  at 
all,  are  principals.      I  Russ.  44  ;   1  Hale,  613. 

If  a  statute  create  a  felony,  though  it  mention  nothing  of  acces- 
sories before  or  after,  yet  virtually  and  consequentially,  those  that 
counsel  or  command  the  offence  are  accessories  before  the  fact, 
and  those  who  knowingly  receive  and  conceal  the  offender,  are 
accessories  after.     1  Russ.  44;  1  Hale,  613,  614,  704. 

Where  a  person  is  mortally  wounded  or  poisoned  in  one  coun- 
ty, and  die  thereof  in  another,  the  offender  may  be  tried  in  the 
county  where  the  death  shall  happen.  Commonwealth  v.  Parker 
et  ah,  2  Pick.  550. 


INDEX 


TREATISE  UPON  THE  OFFICE  OF  GRAND  JURORS, 


The  Antiquity  of  Grand  Jurors,  1. 

Historical  Sketches  of  the  Institution,  2. 

The  Difference  in  the  Mode  of  selecting  them  in  this  Country  and 

in  England,  2,  3. 
Preference  to  the  Mode  of  selecting  in  this  Country,  3. 

The  Mode  of  arranging  the  Subjects  stated,  viz.  — 

1.  Their  Number  and  Qualifications,  4. 

2.  The  Mode  of  selecting  and  summoning  them,  4. 

3.  The  Mode  of  proceeding  after  their  Appearance  in  Court  j 

their  Oath ;  its  Nature  and  Obligations,  4. 

4.  The  Right  of  challenging  Grand  Jurors,  4. 

5.  The  Mode  of  proceeding  after  the  Grand  Jury  are   organ- 

ized, 4. 

6.  The  Nature  of  the  Evidence  to  be  submitted  to  them,  and 

the   Principles  upon  which  it  is  to  be  received  and  con- 
sidered, 4. 

7.  The  Right  of  the   Grand   Jury  to  compel  the  Attendance 

of  Witnesses.     The  finding  of  the  Bills,  &c.  4. 

8.  The  Amendment  of  Indictments  by  Consent  of  the  Grand 

Jury,  4. 

First,  Their  Number ;  —  they  must  consist  of  12  at  least,  4. 
The  Reasons  for  this  stated,  4. 
Their  Qualifications  stated,  4,  6,  7. 


296  INDEX  TO  THE  TREATISE  UPON  GRAND  JURORS. 

Their  Disqualifications  stated,  5. 

Mode  of  taking  Advantage  of  them  stated,  5. 

Their  Number  &c.  in  the  Courts  of  the  United  States,  7. 

Grand  Jurors  de  ialibus  circumstantibus ;  the  Law  as  to  this,  7. 

Second,  The  Mode  of  selecting  and  summoning  them,  7. 

This  is  regulated  by  the  Statutes  of  the  several  States,  and  of 
the  United  States,  which  are  referred  to,  7,  8. 

Third,  The  Course  of  Proceeding  after  their  Appearance  in  Court, 
their  Oath,  &c.  8. 

Proclamation  made  to  Answer  to  their  Names,  8, 

The  Oatli  administered,  9. 

Alphabetical  List  prepared,  9. 

The  Oath  administered  to  the  first  two,  9. 

The  Charge  then  given,  9. 

They  retire  and  elect  a  Foreman,  9. 

Foreman  is  authorized  to  swear  Witnesses  in  the  Presence  of 
the  public  Prosecutor,  9. 

Form  of  the  Oath  to  the  Witness,  9. 

The  fact  of  their  being  sworn  and  a  List  of  their  Names  return- 
ed and  filed  in  Court,  10. 

The  Form  of  the  Oath  nearly  the  same  as  in  England,  10. 

The  Form  of  the  Oath  expresses  the  Obligations  it  imposes,  11. 

Remarks  upon  the  different  Branches  of  it,  11, 12. 

The  Injunction  of  Secrecy  the  most  important,  12. 

Pernicious  Effects  of  a  Breach  of  it  stated,  13. 

The  Obligation  of  Secrecy  is  perpetual,  13,  14. 

Remarks  upon  the  closing  Parts  of  the  Oath,  14. 

Their  Time  of  Service,  Remarks  upon,  14,  15. 

The  Power  of  the  Court  to  discharge  them  conditionally,  15. 

Fourth,  The  Right  to  challenge  the  Grand  Jury,  and  of  instructing 
them  in  the  Principles  of  Evidence,  16. 
If  a  Grand  Juror  has  been  convicted  of  an  infamous  Crime,  he 

may  be  challenged,  16. 
If  he  does  not  possess  the  legal  Qualifications,  16. 
May  be  challenged  for  Favor,  17. 

The  Right  of  the  Court  to  instruct  the  Grand  Jury  when  request- 
ed by  them,  is  well  established,  17. 


INDl^X  TO  THE  TREATISE  UPON  GRAND  JURORS.  297 

But  the  Right  of  the  Accused  to  move  the  Court  to  instruct  the 
Grand  Jury,  has  never  been  admitted,  17. 

Fifth,  The  Mode  of  proceeding  after  the  Grand  Jury  are  organized. 

The  different  Modes  in  this  Country  and  England  stated,  18. 

The  Mode  of  not  offering  the  Bill  till  after  the  Examination  of 
the  Witness,  nor  until  it  has  been  ordered,  preferred,  18. 

Reasons  for  this,  18. 

The  Right  of  the  public  Prosecutor  to  be  present  at  the  Exami- 
nation of  Witnesses  before  the  Grand  Jury,  defended,  18, 
20,  22. 

The  Impossibility  of  proper  Despatch  without  it,  stated,  18,  19, 
20. 

A  Mode  of  proceeding  by  the  public  Prosecutor  pointed  out  and 
recommended,  20,  21. 

Capital  Cases  should  be  first  attended  to,  20. 

The  Duty^of  the  public  Prosecutor  explained,  21. 

The  Inconvenience  of  his  preparing  his  Bills  from  the  Minutes 
of  the  Grand  Jury,  explained,  22,  23. 

The  Origin  of  the  Objection  of  the  Presence  of  the  public  Pros- 
ecutor stated,  23. 

Sixth,  The  Nature  of  the  Evidence  before  the  Grand  Jury,  and  the 
Manner  it  is  to  be  decided  upon. 
Generally  they  can  hear  no  other  Evidence  than  that  produced 

by  the  Government,  23. 
But  if  it  appear,  that  there  is  other  Evidence  which  will  elucidate 

that  produced  by  the  Government,  it  is  said  they  may  require 

it,  24. 
The  Idea  that  a  Bill  may  bo  found  upon  probable  Evidence  is 

exploded,  24,  25. 
They  cannot  find  a  Bill  except  upon  such  Evidence  as  would 

justify  them,  as  a  Traverse  Jury,  to  convict  the  Prisoner,  24, 
The  Grand  Jury  cannot  receive  Evidence  not  under  Oath,  25. 
Nor  any  Evidence  which  would  not  be  admitted  on  the  Trial, 

25. 
An  Accomplice,  not  otherwise  disqualified,  may  give  Evidence 

before  the  Grand  Jury  against  his  Associate,  25. 
The  Grand  Jury  may  ask  the  Opinion  of  the  Court,  if  they  have 

Doubts  as  to  admitting  the  Evidence  offered  them,  26. 
38 


298  INDEX  TO  THE  TREATISE  UPON  GRAND  JURORS. 

If  the  Proceedings  were  permitted  to  be  made  public,  the  whole 
Object  of  the  Institution  would  be  defeated,  26. 

The  Case  of  the  Earl  of  Shajleshury,  where  the  Evidence  before 
the  Grand  Jury  was  received  in  open  Court !  26. 

Seventh,  The  Right  of  the  Grand  Jury  to  compel  the  Attendance  of 

Witnesses. 

The  Grand  Jury  may  order  Witnesses  summoned,  27. 

And  in  all  Cases,  when  properly  summoned,  if  they  refuse  to 
attend,  the  Court  will  issue  an  Attachment  against  them,  27. 

If  the  Foreman  does  not  agree  to  the  Bill,  he  must,  neverthe- 
less, sign  it,  if  twelve  agree  to  it ;  for  it  is  not  the  Foreman's 
Bill,  28. 

It  is  a  Rule,  in  Cases  of  Homicide,  to  return  a  Bill  for  Mur- 
der ;  upon  which  the  Prisoner  may  be  found  guilty  of  Man- 
slaughter, and  not  of  Murder,  28. 

Eighth,  Amendment  of  Indictments. 

It  is  the  common  Practice  in  England  to  amend  Indictments  in 
mere  Matters  of  Form,  by  the  Consent  of  the  Grand  Jury,  29. 

Different  Opinions  as  to  the  Stage  of  the  Proceedings  at  wliich 
this  Consent  is  to  be  given,  29. 

The  Manner  in  which  this  Consent  is  given,  stated,  30. 

There  appears  to  be  no  Objection  to  introducing  the  English 
Practice  of  Amendment  of  Indictments,  in  this  Country,  30. 

The  Opinion  of  eminent  Judges  that  it  ought  to  be,  31. 

The  Improvements  lately  introduced  in  England  by  the  Statute 
of7Geo.  4,  c.  64,<§19,  31. 

The  Statute  of  Massachusetts  of  1830,  c.  49,  adopting  the  Im- 
provements in  the  Statute  of  7  Geo.  4,   32. 


INDEX 


TO  THE  PRECEDENTS. 


A. 


ABORTION. 


At  Common  Law ;  for  administering  a  Potion,  with  Intent  to  cause 

an  Abortion,  33. 
For  causing  an  Abortion  by  an  Instrument,  34. 
For  administering  noxious  Potions,   &c.  with  Intent  to  procure 

an  Abortion,  35. 
For  administering  a  Decoction  of  Savin,  to  procure  an  Abortion 

in  a  Woman  before  the  Quickening,  36. 

ACCESSORY.    Larcent. 

Indictment  against  an  Accessory  to  a  Larceny  before  the  Fact, 
36. 

Against  an  Accessory,  for  receiving  the  principal  Felon,  37. 

Against  an  Accessory,  for  receiving  stolen  Goods,  37. 

Indictment  for  a  Misdemeanor,  against  an  Accessory,  for  re- 
ceiving stolen  Goods,  the  Principal  not  having  been  prose- 
cuted, 38. 

Against  an  Accessory  for  a  Misdemeanor,  in  receiving  stolen 
Goods,  the  principal  Felon  being  unknown,  38. 

Against  an  Accessory,  for  a  second  offence  in  receiving  stolen 
Goods,  the  principal  Felon  being  unknown,  39. 

Accessory  before  the  Fact,  to  a  Robbery,  39. 

Against  an  Accessory  after  the  Fact,  40. 

Indictment  against  an  Accessory  before  the  Fact,  in  Murder,  40. 


300  INDEX. 

Another  Precedent  against    an   Accessory   before   the   Fact  in 

Murder,  41. 
Ao-ainst  an  Accessory,  for  harboring  a  principal  Felon  in  Murder, 

Indictment  against  an  Accessory  to  a  Murder    after    the    Fact, 

upon  the  Statute  of  Massachusetts,  ISO-l,  c.  123,  §  2,    42. 
Indictment    against    the    Principal    and    Accessories    before  the 

Fact  in  Burglary,  42. 
Indictment  against  an  Accessory  to  a  Burglary,  after  the  Fact, 

43. 
Indictment  against  an  Accessory  to  a  Burglary  before  the  Fact, 

where  the  Principal  committed  Suicide  before  he  was  tried,  43. 
Indictment  against  an  Accessory  to  a  Rape,  before  the  Fact,  44. 
Against  an  Accessory  to  a  Rape  after  the  Fact,  45. 
Indictment  against  an  Accessory  before  the  Fact  to  an  Arson,  45. 
Against    an    Accessory  after  the    Fact   for   harboring    &c.    the 

Principal  to  an  Arson :   On  the  5th  Section  of  the  Statute  of 

Massachusetts,  1804,  c.  131,  46. 
Indictment  against  an  Accessory  to  a  Mayhem  before  the  Fact, 

47. 

ADULTERY. 

Indictment  for  Adultery,  by  a  Married  Man  with  an  Unmarried 

Woman,  48. 
For  Adultery,  by  a  Married  Man  with  a  Married  Woman,  48. 

ARSON,  AND  OTHER  MALICIOUS  BURNING. 

Indictment  for  Arson,  49. 

For  setting  Fire  to  a  Building,  whereby  a  Dwelling-House  was 
burnt  in  the  Night  Time,  49. 

For  maliciously  setting  Fire  to  a  Building  adjoining  a  Dwelling- 
House,  whereby  the  Dwelling-House  was  burnt,  49. 

For  maliciously  burning  a  Stable  within  the  Curtilage  of  a  Dwel- 
ling-House, 50. 

For  burning  a  Dwelling-House  in  the  Day  Time  :  On  the  second 
Section  of  the  Statute  of  Massachusetts  of  1804,  c.  1.31,  §  2,  50. 

For  maliciously  burning  a  Meeting-House :  On  the  second  Sec- 
tion of  the  Statute  of  Massachusetts  of  1804,  c.  131,    50. 

For  maliciously  burning  a  Vessel,  lying  within  the  body  of  the 
County:  On  the  third  Section  of  the  Statute  of  Massachusetts 
of  1804,  c.  131,  51. 

Another  Precedent  for  Arson,  51. 

For  burning  his  own  House,  with  Intent  to  defraud  the  Insurers,  52. 


INDEX.  301 

For  setting  Fire  to  a  Gaol,  52. 

For  a  Misdemeanor  at  Common  Law,  in  setting  Fire  to  Defend- 
ant's own  House,  contiguous  to  others ;  to  the  public  Alarm, 
^c.  53. 

For  a  Misdemeanor  at  Common  Law  against  a  Lodger,  for  setting 
Fire  to  the  Wainscot  of  her  Room,  with  Intent  to  burn  the  other 
Rooms,  53. 

ASSAULTS. 

For  an  Assault  not  accompanied  with  a  Battery,  54. 

For  a  common  Assault  and  Battery,  54. 

For  an  Assault  and  Battery,  by  casting  a  Person  on  a  Brick 

Floor,  kicking,  ^c.  55. 
For  an  Assault,  and  beating  out  an  Eye,  55. 
For  an  Assault,  and  tearing  the  Hair  off  Prosecutor's  Head,  56. 
For  an  Assault  with  a  Cane,  56. 
For  assaulting  the  Driver  of  a  Chaise,  and  overturning  the  Chaise 

with  a  Wheel  of  a  Cart,  57. 
For  an  Assault  by  driving  a  Coach  against  Prosecutor's  Chaise, 

57. 
For  an  Assault,  and  driving  a  Cart  against  a  Chaise,  and  throwing 

the  Driver  therefrom,  58. 
For  an  Assault  and  encouraging  a  Dog  to  bite,  58. 
For  assaulting  a  Woman  pregnant  with  a  Quick  Child,  59. 
For  riding  over  a  Person  with  a  Horse,  59. 
For  an  Assault,  and  presenting  a  loaded  Gun,  and  threatening  to 

fire  it,  60. 
For  an  Asssult,  and  forcibly  taking  away  a  Receipt  for  a  Debt, 

60. 
For  a  violent  Assault,  and  wounding  Prosecutor,  with  a  Bayonet, 

61. 
For  an  Assault  and  False  Imprisonment,  61. 
For  the  same  Offence,  and  obtaining  Money  for  discharging  the 

Prosecutor,  62. 
For  the  same,   and   for    obtaining   a   Note  for  discharging  the 

Prosecutor,  62. 
For  entering  a  Public  House,  making  a  Noise  therein,  (assaulting,) 

and  threatening  the  Owner  with  bodily  Harm,  62. 

ASSAULTS  UPON  OFFICERS. 

For  an  Assalt  upon  a  Constable,  in  the  Execution  of  his  Office,  63. 
For  an  Assault  upon  a  Collector  of  a  Turnpike  Corporation  in  the 
Execution  of  his  Office,  63. 


302  INDEX. 

For  an  Assault  on  a  Deputy  Gaoler,  in  the  Execution  of  his  Office, 

64. 
For  an  Assault  upon  a  Minister  of  the  Gospel,  whereby  he  was 

rendered  incapable  of  discharging  his  Duty,  C4. 

ASSAULTS,  WITH  A  FELONIOUS  INTENT. 

For  an  Assault,  with  Intent  to  maim,  G5. 

For  a  felonious  Assault,  with  a  drawn  Sword,  with  Intent  to  mur- 
der, 65. 

For  a  felonious  Assault,  and  casting  into  a  Pond,  with  Intent  to 
suffocate  and  drown,  66. 

For  a  felonious  Assault,  with  Intent  to  commit  a  Rape,  66. 

For  a  felonious  Assault,  with  Intent  carnally  to  know  and  abuse 
a  Female  Child  under  the  Age  of  ten  Years,  67. 

For  a  felonious  Assault  upon  a  Woman,  by  two  Persons,  with 
Intent  that  one  of  them  should  ravish  her,  67. 

For  an  Assault  with  Intent  to  rob,  68. 

For  an  Assault  upon  a  Boy,  with  Intent  to  commit  the  Crime  against 
Nature,  68. 

For  an  Assault,  with  Intent  to  steal  from  the  Person,  68. 


B. 

BARRATRY. 

Indictment  for  being  a  common  Barrator,  69» 

Against  an  Attorney,  for  suing  a  Person  in  the  Name  of  one  who 

was  ignorant  of,  and  had  no  interest  in  the  Suit,  69. 
Against  an  Attorney  for  advancing  Money  to  procure  himself  to 

be  retained,  in  the  Collection  of  a  Note,  70. 

BASTARD. 

Indictment  against  a  Woman  for  concealing  her  Pregnancy,  71. 
Against  a  Woman  for  concealing  the  Death  of  a  Bastard  Child,  71. 

BAWDY-HOUSE.  —  See  Nuisance. 

BESTIALITY.  —  See  Sodomy. 

BIGAMY.  —  See  Polygamy. 

MURDER  OF  BASTARD  CHILDREN.  — See  Murder. 


INDEX.  303 

BLASPHEMY. 

For  Blasphemy,  by  blaspheming  the  holy  Name  of  God,  72. 
For  Blasphemy,  by  cursing  and  reproaching  Jesus  Christ,  73. 
For  Blasphemy,  by  cursing  and  reproaching  the  Holy  Ghost,  73. 
For  Blasphemy,  by  cursing  and  contumeliously  reproaching  the 

Holy  Scriptures,  74. 
For  Blasphemy  ;  at  Common  Law,  74. 

BRIBERY. 

Against  a  Justice  of  the  Court  of  Common  Pleas,  for  accepting  a 
Bribe,  75. 

For  attempting  to  bribe  a  Justice  of  the  Court  of  Common  Pleas, 
76. 

For  bribing  a  Person  to  procure  an  Office  of  Trust :  On  the  Pro- 
vincial Statute  of  Massachusetts  of  1758,  77. 

For  accepting  a  Bribe  to  procure  an  Office  of  Trust :  On  the  Pro- 
vincial Statute  of  Massachusetts  of  1758,  77. 

For  offering  to  bribe  a  Commissioner  of  the  Revenue  of  the  United 
States,  77. 

For  endeavouring  to  bribe  a  Constable,  78. 

For  Bribery  of  a  Judge  of  the  United  States  :  On  the  Act  of  April 
30,  1790,  §  21,    79. 

For  giving  a  Bribe  to  the  President  or  Directors  of  the  Bank  of 
the  United  States  :  On  the  Act  of  March  3, 1819,  §  4,    79. 

Against  an  Officer  of  the  Customs  for  receiving  a  Bribe  for  a  false 
Entry  of  a  Vessel,  Goods,  &c. :  On  the  Act  of  the  United  States 
of  March  2,  1719,  §  88,  80. 

BURYING  PLACES.  —  See  Sepulchres  of  the  Dead. 

BURNING.  —  See  Arson. 

BRIDGES.  —  See  Nuisance. 

BURGLARY  :  AND  OTHER  BREAKING  AND  ENTERING  OF 
BUILDINGS. 

Indictment  for  Burglary  at  Common  Law,  81. 

For  a  Burglary  with  Intent  to  steal,  81. 

For  a  Burglary,  Defendant  being  armed  with  a  dangerous  Wea- 
pon, 82. 

For  a  Burglary  by  breaking  out  of  a  Dwelling-House,  82. 

For  Burglary,  where  the  Prisoner  armed  himself  with  a  dangerous 
Weapon  in  the  Dwelling-House,  83. 


304  INDEX. 

For  Burglary,  where  the  Prisoner  committed  an  Assault  upon  a 
Person  lawfully  in  the  House,  83. 

Burglary  against  the  Principal,  and  others  present,  aiding,  assist- 
ing, &c. 

For  entering  a  Dwelling-House,  in  the  Night  Time,  without  break- 
ing, with  Intent  &c. 

For  breaking  and  entering  a  Ship  or  Vessel,  in  the  Day  Time, 
with  Intent  &c.  85. 

CHALLENGING  TO  FIGHT. 

For  sending  a  written  Challenge,  86. 

For  sending  a  Challenge  in  a  Letter,  86. 

Another  Precedent  for  challenging  by  Letter,  87. 

For  a  verbal  Challenge,  87. 

Another  Precedent  for  a  verbal  Challenge,  87. 

For  carrying  a  Challenge  to  the  Prosecutor,  88. 

For  provoking  and  inciting  Prosecutor  to  fight,  88. 

For  engaging  in  a  Duel  where  no  Homicide  ensued,  89. 

For  challenging,  by  written  Message,  to  fight  a  Duel,  89. 

For  being  a  Second  in  a  Duel,  90. 

For  being  a  Second  to  a  Person  given  a  Challenge,  when  no  Duel 

is  fought,  90. 
For  accepting  a  Challenge  when  no  Duel  ensued,  90. 
For  being  a  Second  to  a  Person  accepting  a  Challenge,  when  no 

Duel  is  fought,  91. 

CHAMPERTY.  —  See  Maintenance. 


CHEATS. 

Indictment  at  Common  Law  for  selling  by  false  Scales,  91. 

For  defrauding  a  Person  by  means  of  a  counterfeit  Letter  and 
other  false  Tokens  :  On  the  Statute  of  33  H.  8,  c.  1,   92. 

For  obtaining  Goods  of  a  Shopkeeper,  under  Pretence  of  being 
Servant  to  a  Customer,  93. 

For  obtaining  Goods  under  Pretence  of  being  Merchants  of  Proper- 
ty and  Credit,  94. 

For  obtaining  Money  by  drawing  upon  a  Person  whom  the  De- 
fendant pretended  was  indebted  to  him  and  was  a  Person  of 
Property,  95. 

For  obtaining  a  Note  under  Pretence  of  inspecting  it,  and  then 
cancelling  and  destroying  it,  96. 


INDEX.  305 

COMPOUNDING  A  FELONY. 

For  compounding  a  Felony,  97. 

For  compounding  an  Offence  against  a  penal  Statute,  98. 

CONSPIRACY. 

For  a  Conspiracy  to  charge  a  Man  with  a  Rape,  with  Intent  to 
obtain  Money  from  him,  99. 

For  a  Conspiracy  to  charge  a  Man  with  receiving  stolen  Goods, 
knowing  them  to  be  stolen,  and  obtaining  Money  for  com- 
pounding the  same,  100. 

For  a  Conspiracy  among  Workmen  to  raise  their  Wages  and 
les^n  the  Time  of  Labor,  lOL 

For  a  Conspiracy  to  charge  a  Man  with  being  the  Father  of  a 
Bastard  Child,  101. 

For  a  Conspiracy  to  cheat  a  Man  of  his  Goods,  under  Pretence  of 

buying  them,  102. 

For  a  Conspiracy  to  make  an  unlawful  and  oppressive  Tax,  103. 

For  a  Conspiracy  to  defraud  an  illiterate  Person,  by  falsely  read- 
ing to  him  a  Deed  of  Bargain  and  Sale,  as  and  for  a  Bond  of 
Indemnity,  103. 

For  a  Conspiracy  to  obtain  Goods  upon  Credit,  and  then  to  ab- 
scond, and  defraud  the  Vendor  thereof,  104. 

For  a  Conspiracy  to  manufacture  spurious  Indigo,  with  Intent  to 
sell  the  same  as  genuine  Indigo  of  the  best  Quality,  105. 

For  a  Conspiracy  by  Perons  confined  in  Prison,  lo  effect  their  own 
Escape  and  that  of  others,  106. 

For  a  Conspiracy,  by  Prisoners,  to  effect  their  Escape,  and  break- 
ing down  a  part  of  the  Wall  of  the  Prison,  107. 

For  a  Conspiracy  by  Prisoners,  and  attempting  to  blow  up  the 
»     Wall  of  a  Prison  with  Gunpowder,  107. 

For  a  Conspiracy  to  persuade  a  Man  not  to  give  Evidence  against 
One  committed  for  Trial,  108. 

Another  Form  for  the  same  Conspiracy,  without  averring  any 
Overt  Act,  109. 

For  a  Conspiracy  to  cheat  Another,  without  alleging  any  Overt 
Act,  109. 


CORRECTION,  House  of.  —  See  Nuisance. 

COUNTERFEITING.  —  See  Forgery. 
39 


306  INDEX. 

D. 

DECEIT.  — See  Cheats. 

DUELLING.  —  See  Challenges  to  fight. 

E. 

ELECTIONS. 

Indictment  for  fraudulently  voting  at  an  Election  of  Governor, 

^c.  110. 
Against  the   Selectmen  of  a   Town,  for  fraudulently  admitting 

Persons  not  qualified  to  vote  at  an  Election,  111. 

EMBRACERY. 

For  Embracery,  by  persuading  a  Juror  to  give  Lis  Verdict  in 
Favor  of  the  Defendant,  and  for  soliciting  the  other  Jurors  to 
do  the  like,  113. 

ESCAPE. 

Indictment  at  Common  Law^  for  escaping  from  a  Constable,  being 

in  Custody  under  a  Warrant  for  Larceny,  114. 
Against  a  Prisoner  in  Custody,  for  breaking  out  of  Gaol,  115. 
Against  a  Constable  for  a  negligent  Escape,  115, 
Against  a  Gaoler,  for  a  voluntary  Escape  of  a  Prisoner  convicted 

of  Felony,  116. 
For  conveying  Instruments  into  a  Prison,  w^ith  Intent  to  facilitate 

the  Escape  of  a  Prisoner,  117. 
i^  gainst  a  Prisoner  confined  in  Gaol,  for  attempting  to  break  the 

Gaol  in  order  to  make  his  Escape,  119. 

EXTORTION. 

Indictment  against  a  Justice  of  the  Peace  for  Extortion :  On  the 

sixth  Section  of  the  Statute  of  Massachusetts,  119. 
Against  a  Constable,  for  taking  Money  under  Pretence  of  getting 

the  Party  discharged  without  any  Proceedings  to  be  had  before 

a  Justice  of  the  Peace,  120. 
Against  a  Constable  for  extorting  Money  of  a  Person  apprehended 

by  him  upon  a  Warrant,  to  let  him  go  at  large,  121. 


INDEX.  307 

Against  a  Justice  of  the  Peace  for  extorting  Fees  for  discharging 
a  Recognisance,  and  for  not  returning  the  same  to  the  Court 
for  which  it  was  taken,  121. 


F. 

FORCIBLE  ENTRY  AND  DETAINER. 

Indictment  for  a  Forcible  Entry  and  Detainer,  at  Common  Law, 
122. 

FORESTALLING,  ENGROSSING,  AND  REGRATING. 
For  forestalling  Lambs  in  their  Way  to  a  public  Market,  123. 
For  Engrossing,  124. 
For  Regrating,  124. 

FORGERY  AND  COUNTERFEITING. 

For  forging  a  Promissory  Note  for  the  Payment  of  Money :  On 

the  first  Section  of  the  Statute  of  Massachusetts  of  1804,  c.  120, 

124. 
For  forging  a  Certificate  of  a  Justice  of  the  Peace  :  On  the  first 

Section  of  the  Statute,  125. 
For  uttering  and  publishing  a  forged  Instrument :    On  the  last 

Clause  of  the  first  Section  of  the  Statute,  125. 

Precedents  upon  the  Second  Section  of  the  Statute. 

For  forging  a  Certificate  of  a  public  Debt,  126. 

For  forging  a  Bank  Bill  of  a  Bank  incorporated  within  this  State, 

127. 
For  being  possessed  of  ten  counterfeit  Bank  Bills  at  the  same 

time,  with  Intent  to  pass  the  same,  127. 

Indictments  framed  upon  the  Third  Section  of  the  Statute. 
For  uttering  and  tendering  in  Payment  a  Counterfeit  Bank  Bill  of 

an  incorporated  Bank  in  Massachusetts,  128. 
For  a  second  Offence  in  passing  a  Counterfeit  Bank  Bill,  128. 
For  bringing   into,  and   being   possessed  of  a   Counterfeit   Bill 

within  this  Commonwealth,  with  intent  &c. :  Drawn  upon  the 

fourth  Section  of  the  Statute,  129. 


308  INDEX. 

Forms  of  Lndictments  upon  the  Fifth  Section  of  the 

Statute. 
For  making  or  memlinfr  any  Tool  &c.,  to  be  used  in  counterfeit- 
ing Bank  Bills  &c.,  130. 
For  being  possessed  of  any  Tool  &c.,  to  be  used  in  counterfeiting 
Bills  &c.,  130. 

Forms  &c.  upon  the  Sixth  Section  of  the  Statute. 
For  counterfeiting  any  Gold  or  Silver  Coin,  131. 
Another  Form  for  the  Same,  more  fully  set  forth,  131. 
For  being  possessed  often  Pieces  of  Counterfeit  Coin,  with  intent 

to  pass  the  same,  J  31. 

Forms  &c.  upon  the  Seventh  Section  of  the  Statute. 
For  being  possessed  of  any  number  of  Pieces  of  false  Coin,  with 

intent  &c.,  132. 
For  uttering  and  passing  Counterfeit  Coin,  knowing  &c.,  132. 
For  making  or  being  possessed  of  any  Tool  &c.,  to  be  used  in 

counterfeiting  Coin  :    On  the  eighth  Section  of  the  Statute,  133. 
For  forging  a  Bond  signed  with  a  Mark,  with  intent  to  defraud  the 

Executors  of  a  deceased  Person,  133. 

Precedents  of  Indictments  for  Forgery  and  Counterfeiting, 

DRAWN  upon  the  STATUTES  OF  THE  UnITED  StATES. 

For  forging  a  Bill  or  Note  of  the  United  States  Bank,  134. 

For   uttering  and  publishing  a  forged  Bill  of  the  United  States 

Bank,  on  the  same  Section  of  the  Statute,  135. 
For  selling  and  delivering  a  forged  Bill  of  the  United  States  Bank: 

On  the  same  Section  of  the  Statute,  135. 
For  uttering  and  passing  a  falsely  altered  Bill,  &c. :  On  the  same 

Section  of  the  Statute,  136. 

Forms  of  Indictments  for  Counterfeiting  the  Current  Coin 
OF  the  United  Staes. 
For  counterfeiting  any  Gold  or  Silver  Coin,  resembling  the  Gold 

and  Silver  Coin  which  has  been  coined  at  the  Mint  of  the 

United  States,  137. 
For   uttering   and  publishing   counterfeit  Coin,  which  has  been 

coined  at  the  Mint  of  the  United  States,  137. 
For  debasing  the  Coin  of  the  United  States  by  an  OfRcer  employed 

at  the  Mint,  138. 
For  fraudulently  diminishing  the  Coin  of  the  United  States,  138. 


INDEX.  309 


G. 


GAMING  AND  GAMING-HOUSES. 

For  playing  at  Cards  at  a  House  of  Entertainment,  139. 

For  exposing  to  View  Implements  of  Gaming,  139. 

For  winning  Money  by  Gaming :    On   the  third  Section  of  the 

Statute  of  Massachusetts  of  17S5,  c.  58,    139. 
For  keeping   a    common   Gaming-House   for  Billiards :    On  the 

Statute  of  1798,  c.  1,  §  1,   140. 
For  keeping  a  private  Billiard  Table  for  hire,  &c. :  On  the  second 

Section  of  the  Statute  of  1798,  c.  20,    140. 
For  playing  at  Billiards :  On  the  third  Section  of  the  Statute  of 

1798,  c.  20,   141. 


L. 

LARCENY  AND  ROBBERY. 

For  simple  Larceny,  at  Common  Law,  for  stealing  the  Property 

of  several  Persons,  141. 
For  simple  Larceny  :  On  the  first  Section  of  the   Statute  of  Mas 

sachusetts,  of  1804,  ch.  143,   142. 
For  breaking  and  entering   a   Shop  in  the  Night,  and   commit- 
ting a  Larceny  therein  :    On  tlie  fourth  Section  of  the    Stat- 
ute,  142. 
For  breaking  and  entering  a  Vessel  in  the  Night  Time  and  com- 
mitting a  Larceny  therein :  On  the  fourth  Section  of  the  Statute, 
143. 
For   entering    a    Dwelling-House   in  the   Night  Time,   without 
breaking,  the  Owner  being  therein,  and  put  in  Fear :  On  the 
fifth  Section  of  the  Statute,  143. 
For  breaking  and  entering  a  Dwelling-House  in  the  Day  Time, 
the  Owner  being  therein,  and  put  in  Fear :  On  the  fifth  Section 
of  the  Statute,  14.3. 
For  breaking  and  entering  an  Out-House,  adjoining  a  Dwelling- 
House  &c.,  in  the  Day  Time,  the  Owner  being  therein,  and  put 
in  Fear:  On  the  fifth  Section  of  the  Statute,  144. 
For  committing  a  Larceny  in  the  Day  Time,  in  a  Dwelling-House  : 

On  the  sixth  Section  of  the  Statute,  144. 
For  breaking  and  entering  a  Meeting-House  in  the  Night  Time, 
and  committing  a  Larceny  therein :  On  the  sixth  Section  of  the 
Statute,    145. 


;J0  INDEX. 

For  breaking  and  entering  a  Court-House  in  the  Night  Time, 
and  comnaitting  a  Larceny  therein :  On  the  sixth  Section  of  the 
Statute,  145. 

For  breaking  and  entering  a  Stable  in  the  Night  Time,  and  com- 
mitting a  Larceny  therein  :  On  the  sixth  Section  of  the  Stat- 
ute, 146. 

For  stealing  from  the  Person,  openly  and  violently  :  On  the  eighth 
Section  of  the  Statute,  14G. 

For  stealing  from  the  Person  privily  and  fraudulently :  On  the 
eighth  Section  of  the  Statute,  146. 

For  a  second  Conviction  of  Larceny :  On  the  third  Section  of  the 
Statute,  147. 

Precedents  for  Larceny  on  the  Statutes  of  the  United 
States. 

Against  an  Officer  of  the  Bank  of  the  United  States,  for  a  Larceny 

of  the  Property  of  the  Bank:  On  the  Statute  of  3d  March,  1816, 

§18,    147. 
Against  an  Officer  of  the  Bank  of  the  United  States  for  embezzling 

Money,  Goods,  &lc.  :  On  the  latter  Claus'e  of  the  same  Section 

of  the  Act,  148. 
For   Larceny    and   Embezzlement   of  public   Property:    On   the 

Statute  of  the  United  States  of  30th  April,  1790,  §  26,    149. 
Against  an  Assistant  Postmaster,  for  stealing  Money  which  came 

into  his  hands  as  Assistant  Postmaster :  On  the  Act  of  3d  March, 

1825,  §  21,  149. 

Forms  of  Indictments  for  Robbery. 

Form  of  Indictment  for  Robbery:  On  the  Statute  of  Massachusetts 
of  1804,  c.  143,   150. 

For  a  capital  Robbery,  the  Prisoner  being  armed  with  a  dangerous 
Weapon,  with  intent  to  kill  or  maim :  On  the  first  Section  of  the 
Statute  of  Massachusetts  of  1818,  c.  124,    150. 

For  a  capital  Robbery,  the  Prisoner  being  armed  with  a  danger- 
ous Weapon,  and  actually  striking  and  wounding  the  Person 
assaulted  and  robbed  :  On  the  latter  Clause  of  the  first  Section 
of  the  Statute  of  1818,  c.  124,    151. 

For  robbing  a  Carrier  of  the  Mail  of  the  United  States  by  the  Use 
of  a  dangerous  Weapon :  On  the  Act  of  Congress  of  3d  March 
1825,  c.  29,  1.52. 


INDEX.  311 

LEWDNESS  AND  LASCIVIOUS  COHABITATION. 

For  Lewd  and  Lascivious  Cohabitation,  153. 
For  open,  gross  Lewdness,  and  Lascivious  Behaviour,  153. 
At  Common  Law,  for  exposing  Defendant's  naked  Body  in  a  public 
Street,  153. 

LIBEL. 

For  publishing  a  Libellous  Letter,  imputing  the  Crime  of  Theft 
to  the  Prosecutor,  154. 

For  a  Libel  upon  a  private  Individual,  1.54. 

For  a  Libel  upon  an  Attorney,  contained  in  a  Letter,  155. 

Against  the  Printer  of  a  Newspaper,  for  publishing  an  Advertise- 
ment by  a  married  Woman,  offering  to  become  a  Mistress,  156. 

For  a  Libel,  by  hanging  Prosecutor  in  Effigy,  157. 

For  publishing  an  ex  parte  Statement  of  an  Examination  before  a 
Magistrate,  for  an  Offence  with  which  the  Defendant  was 
charged,  158. 

For  a  Libel  on  a  Person  who  was  dead,  158. 

For  publishing  an  obscene  Print,  159. 

For  publishing  a  seditious  Libel,  160. 

For  writing  a  libellous  Letter  to  the  Prosecutor,  160. 

For  a  blasphemous  Libel,  161. 

For  a  Libel  upon  a  Senator  of  the  United  States,  161. 

LOTTERY.  Forms  of  Indictments  upon  the  Statutes  prohibit- 
ing THE  Sale  &c.  of  Lottery  Tickets. 
For  selling  a  Lottery  Ticket :  On  the  Statute  of  Massachusetts  of 

1825,  c.  184,  §  1,    162. 
For  exhibiting  a  Sign  or  other  emblematical  Representation  of  a 
Lottery,  &.c. :  On  the  Statute  of  Massachusetts  of  1828,  c.  134, 
§1,    163. 


M. 

MAINTENANCE. 

For  Maintenance  of  an  /u  tion  of  Debt,  164, 
For  Maintenance  of  an  Act,:     of  Ejectment,  164. 

MALICIOUS  MISCHIEF. 

For  maliciously  burning  a  Quantity  of  Boards,  164. 

For  wilfully  and  maliciously  maiming  and  disfiguring  a  Horse,  165. 


321  INDEX. 

MARRIAGE  UNLAWFULLY  SOLEMNIZED. 

For  solemnizing  a  Marriage  without  lawful  Authority,  165. 

MANSLAUGHTER. 

Against  the  Driver  of  a  Cart  for  driving  over  Deceased,  166. 

MAYHEM. 

For  Mayhem  by  slitting  the  Nose,  167, 

MISPRISION  OF  FELONY. 

Indictment  for  Misprision  or  Concealment  of  Felony,  168. 
Another  Form  for  Misprision  of  Felony,  168. 
For  a  Misprision  of  an  intended  Felony,  169. 

MURDER. 

For  Murder,  by  shooting  with  a  Pistol,  170. 

For  Murder,  by  stabbing  with  a  Knife,  172. 

For  Murder,  by  cutting  the  Throat,  173. 

For  Murder,  by  throwing  a  Knife,  173. 

For  Murder,  by  casting  a  Stone,  174. 

For  Murder,  by  striking  with  a  Poker,  175. 

For  Murder,  by  beating  with  Fists,  and  kicking  on  the  Ground, 
176. 

For  Murder,  by  choking  and  strangling,  177. 

For  Murder,  by  riding  over  a  Person  with  a  Horse,  177. 

For  Murder,  by  strangling  with  a  Handkerciiief,  178. 

For  the  Murder  of  a  Bastard  Child,  by  folding  it  in  a  Cloth,  178. 

For  Murder,  by  throwing  a  Child  into  a  Privy,  179. 

For  killing  a  Bastard  Child,  by  Strangling,  180. 

For  the  Murder  of  a  Child,  by  hiding  and  starving  it,  181. 

For  Murder,  by  Drowning,  181. 

For  Murder,  by  secretly  conveying  Poison  to  the  Deceased,  182. 

For  Murder,  by  placing  Poison  so  as  to  be  mistaken  for  Medi- 
cine, 183. 

For  Murder,  by  sending  Poison,  185. 

For  Murder,  by  Poisoning,  186. 

For  forcing  the  Deceased  to  drink  Spirits  to  Excess,  187. 

By  forcing  a  sick  Person  into  the  Street,  187. 

By  confining  and  starving  an  Apprentence,  188. 

Against  a  Woman  for  drowning  her  own  Child,  189 

For  Murder  with  a  Bludgeon,  190. 


INDEX.  313 


N. 


NUISANCE. 

For  erecting  a  Soap  Manufactory  near  a  Highway  and  Dwel- 
ling-House,  191. 

For  mixing  Lees,  and  boiling  Tallow,  Soap,  ^c.  192. 

For  keeping  Hogs  near  a  public  Street,  192. 

For  erecting  Obstructions  on  a  Navigable  River,  193. 

For  obstructing  a  public  Street  by  leaving  empty  Drays  in  it, 
194. 

Against  the  Inhabitants  of  a  Town  for  not  repairing  a  Highway, 
195. 

For  laying  Rubbish  in  a  Street,  whereby  a  Carriage  was  overturn- 
ed, 196. 

For  erecting  a  Building  on  a  common  Highway,  197. 

For  keeping  a  disorderly  House,  198. 

For  keeping  a  common  Bawdy  House,  198. 


P. 

FALSE  PERSONATING. 

Form  of  Indictment  for  personating  the  Proprietor  of  Consolidated 
Bank  Annuities,  and  transferring  the  same,  199. 

PERJURY. 

For  Perjury  in  an  Affidavit  to  hold  to  Bail,  in  falsely  swearing  to  a 
Debt,  200. 

For  Perjury,  by  a  Witness,  on  the  Trial  of  an  Issue  in  the  Supreme 
Judicial  Court,  201. 

For  Perjury,  in  an  Answer  sworn  to  before  a  Master  in  Chancery, 
202. 

For  Perjury,  in  Answer  to  Interrogatories  exhibited  in  Chancery, 
204. 

For  Perjury,  by  a  Bankrupt,  in  his  Examination  before  the  Com- 
missioners in  the  Circuit  Court  of  the  United  States,  206. 

For  Perjury,  in  a  Complaint  before  a  Magistrate,  207. 

For  Perjury,  in  filiating  a  Child,  before  a  Justice  of  the  Peace,  209. 

For  Perjury,  in  giving  Evidence  on  the  Trial  of  an  Issue  on  an 
Indictment  for  Perjury,  210. 
40 


314  INDEX. 

For  Perjury,  on  a  Trial  in  the  Supreme  Judicial  Court  in  a  Civil 

Action,  211. 
For  Perjury,  on  the  Trial  of  an  Issue  in  an  Action  of  Assumpsit, 

212. 
For  Perjury,  in  taking  the  Poor  Debtors'  Oath,  &c,  213. 

SUBORNATION  OF  PERJURY. 

For  Subornation  of  Perjury,  by  procuring  a  Woman  to  swear  a 

Bastard  Child  upon  an  innocent  Man,  217. 
For  endeavouring  to  suborn  a  Person  to  give  Evidence  on  the 

Trial  of  an  Issue  in  the  Supreme  Judicial  Court,  218. 
For  persuading  a  Witness  not  to  give  Evidence  against  a  Person 

charged  with  an  Offence  before  the  Grand  Jury,  219. 
For  Subornation  of  Perjury,  on  a  Trial  for  Robbery,  where  the 

Prisoner  set  up  an  Alibi,  220. 

PIRACY. 

Against  several,  for  Piratically  attacking,  taking,  and  carrying 

away  a  Ship,  with  Goods  &c.  on  board,  221. 
For  Piratically  running  away  with  a  Vessel  by  the  Mariners  of  the 

same  Vessel,  222. 
For  Piracy,  by  causing  a  Revolt  in  a  Merchant  Ship,  223. 
For  piratically  taking  and  running  away  with  a  Ship,  Tackle? 

Cargo,  &c.  224. 
Against  a  Captain  or  Mariner  for   voluntarily  yielding  up  his 

Vessel  to  a  Pirate,  225. 
Against  a  Seaman  for  laying  violent  Hands  upon  his  Commander, 

with  Intent  to  prevent  his  fighting  in  Defence  of  his  Ship,  225. 
Against  an  Accessory  to  a  Piracy  before  the  Fact,  226. 
Against  an  Accessory  to  a  Piracy  after  the  Fact,  226. 
For  breaking  and  boarding  a  Ship,  assaulting  &c.  the  Crew,  and 

stealing  &c.  the  Cargo,  227. 
For  stabbing,  casting  into  the  Sea,  and  drowning  the  Deceased, 

228. 

POLYGAMY. 

Indictment  for  having  two  Wives  at  the  same  Time,  229. 
Indictment  for  having  two  Husbands  at  the  same  Time,  229. 


INDEX.  315 

SELLING  UNWHOLESOME  PROVISIONS. 

For  Selling  unwholesome  Provisions  :  On  the  Statute  of  Massa- 
chusetts, 1784,  c.  50,   230. 
At  common  law,  for  supplying  unwholesome  Bread,  230. 


R. 


RAPE. 

Form  of  an  Indictment  for  a  Rape,  23L 

For  carnally  knowing  and  abusing  a  female  Child  undar  the  Age 

ofTen  Years,  231. 
Against  two  Persons  for  assaulting  a  married  Woman  witli  Intent 
that  one  of  them  should  ravish  her,  231. 

RESCUE. 

Indictment  for  rescuing  a  Person  in  Custody  of  a  Constable  under 

a  Justice's  Warrant,  232. 
For  rescuing  Goods  distrained  for  Rent,  233. 
For  rescuing  Cattle  out  of  a  Pound  taken  as  Distress,  Damage 

Feasant,  234. 
For  breaking  a  Pound  and  letting  out  a  Mare,  235. 

RIOT. 

Indictment  for  a  Riot,  236. 

For  a  Riot  and  Assault,  236. 

For  a  Riot,  Assault,  and  False  Imprisonment,  237. 

For  riotously  assembling  to  prevent  the  Execution  of  an  Act  of 

the  Legislature,  relative  to  the  Revenue,  237. 
For  a  Riot  in  the  Theatre,  and  preventing  the  Performance  of  a 

Play,  238. 
For  riotously  assembling  and  hanging  the  Effigy  of  a  Person,  239. 
For  a  Riot  and  pulling  down  an  Out-House,  239. 
For  a  Riot  in  a  House,  and  assaulting  a  Lodger,  240. 
For  riotously  attacking  a  Dwelling-House,  breaking  the  Windows, 

&c.  240. 
For  riotously  breaking  a  Dwelling-House  and  removing  Goods, 

241. 
For  a  Riot,  in  breaking  into  a  Dwelling-House  on  Pretence  of  an 

Execution,  242. 


316  INDEX. 

Indictment  for  a  Riot,  breaking  into  a  Room  with  offensive  Wea- 
pons, &c.,  Assault  and  Battery  in  the  Room,  and  breaking  the 
Furniture,  242. 

For  a  Riot,  by  twelve  Persons  remaining  an  Hour  after  Proclama- 
tion read,  243. 

ROBBERY.  —  See  Larceny  and  Robbery. 


SABBATH-BREAKING. 

For  keeping  an  open  Shop  on  the  Lord's  Day,  245. 

Against  a  Drover  for  travelling  and  driving  Droves  of  Cattle  oh 
the  Lord's  Day:  On  the  2d  Section  of  the  Statute,  246. 

For  indecent  and  rude  Behaviour  within  the  Walls  of  a  Place  of 
Public  Worship:  On  the  7th  Section  of  the  Statute,  247. 

For  interrupting  and  disturbing  Public  Worship  :  On  the  8th  Sec- 
tion of  the  Statute,  247. 

SEPULCHRES  OF  THE  DEAD. 

At  Common  Law,  for  digging  up  and  carrying  away  a  Dead  Body 

out  of  a  Church  Yard,  248. 
For  digging  up  a  Human  Body  &c. :  On  the  1st  Section  of  the 

Statute  of  Massachusetts,  of  February  28,  1831,   248. 
Against  an  Accessory  before  the  Fact  for  digging  up  a  Human 

Body  :  On  the  2d  Section  of  the  Statute,  249. 

SODOMY  AND  BESTIALITY. 

For  Sodomy,  committed  with  a  Boy,  250. 
For  Sodomy,  committed  with  a  Beast,  250. 


T. 

TREASON. 

Form  of  an  Indictment  for  Treason,  by  levying  War  against  the 

United  States,  251. 
For  levying  War   against  the  State  of  Massachusetts:  On  the 

Statute  of  1777,   252. 


INDEX.  317 

For  traitorously  adhering  to,  and  giving  aid  and  comfort  to  the 

Enemies  of  the  United  States,  253. 
For  levying  War  against  the  United  States,  254. 
Another  Precedent  for  Treason  by  levying  War,  255. 
Another  Form  of  an  Indictment  for    Treason  by  levying  War 

against  the  United  States,  256. 

TRESPASS,  Indictments  for  trespasses  upon  the  statute  of 
Massachusetts  of  1785,  ch.  28. 

For  cutting  down  Trees  growing  for  Ornament :  On  the  first  Sec- 
tion of  the  Statute,  257. 

Against  a  Person  for  throwing  down  and  leaving  open  Bars,  inclos- 
ing Land  not  his  own  :  On  the  first  Section  of  the  Statute,  257. 

Against  a  Person  for  digging  up  and  carrying  away  Stones  and 
Gravel,  on  Land  not  his  own  :  On  the  first  Section  of  the  Stat- 
ute, 258. 

Against  a  Person  for  carrying  away  Goods  from  a  Wharf  (or 
Landing-place),  whereof  he  was  not  a  Proprietor:  On  the  first 
Section  of  the  Statute,  258. 

Against  a  Person  for  breaking  the  Glass  in  a  Building  not  his 
own:  On  the  first  Section  of  the  Statute,  258. 

For  wilfully  breaking  and  defacing  a  Mile-stone  :  On  the  second 
Section  of  the  Statute,  259. 

For  cutting  down  Trees  secretly  in  the  Night  Time :  On  the 
third  Section  of  the  Statute,  259. 

Forms  of  Indictments  for  preventing  Trespasses,  upon  the  addi- 
tional Act  of  Massachusetts,  of  1818,  ch.  3,  §  2,    259. 

For  breaking  and  injuring  Trees  and  Shrubs  :  On  the  third  Sec- 
tion of  the  Statute  of  1818,  ch.  3,   260. 

For  entering  on  Grass-land,  and  carrying  away  Hay :  On  the 
second  Section  of  the  Statute  of  1818,  ch.  .3,     260. 

For  committing  any  of  the  Trespasses  mentioned  in  the  foregoing 
Act  of  1818,  ch.  3,  on  the  Lord's  Day :  On  the  fourth  Sec- 
tion of  the  Statute,    260. 

For  committing  a  Trespass  mentioned  in  the  Act  of  1818,  ch. 
3,  in  the  Night  Time  :  On  the  Fourth  Section  of  the  Statute, 
261. 


318  INDEX. 


U. 

USURY 

Form  of  an  Indictment  for  Usury,  262. 


INFORMATIONS  IN  CRIMINAL  CASES. 

Form  of  an  Information  in  a  Criminal  Case,  264. 

INFORMATIONS  QUO  WARRANTO. 

Commonwealth  v.  John  Breed,  266. 

Plea  to  the  foregoing  Information,  268. 

Information,  quo  Warranto,  against  S.  F.,  Esq.,  for  exercising  the 
Office  of  Judge  of  Probate,  without  Warrant,  270. 

Form  of  a  Judgment  upon  an  Information  in  the  Nature  of  a 
Q,uo  Warranto :  Entered  by  Order  of  Court  in  the  Case  of 
The  Commonwealth  v.  Fowler,    273. 

The  People  of  the  State  of  New  York,  tx  relatione,  The  Attor- 
ney General,  against  The  Utica  Insurance  Company,  273. 

The  Plea,  274. 

PLEADINGS  IN  CRIMINAL  CASES. 

Plea  to  the  Jurisdiction  of  the  Court,  276. 
Replication  to  the  above  Plea,  276. 
Plea  in  Abatement  for  a  Misnomer,  276. 
Replication  to  the  Plea  of  Misnomer,  277. 

PLEAS  IN  BAR,  IN  CRIMINAL  CASES. 

Plea  of  Auterfois  Acquit,  278. 

Plea  of  Auterfois  Convict,  278. 

Demurrer  to  an  Indictment,  279. 

Joinder  in  Demurrer,  279.  ' 

PLEA  OF  PARDON,  280. 


INDEX.  319 


CERTIORARI. 

To  the  Court  of  Common  Pleas,  282. 

WRIT  OF  ERROR. 

Writ   of  Error  (coram  nobis)  in  a  criminal  Case,  where  Judg- 
ment had  been  rendered  in  the  Supreme  Judicial  Court,  283. 
Assignment  of  Errors,  283. 

WRITS  OF  HABEAS  CORPUS. 

Writ  of  Habeas  Corpus,  ad  Subjiciandum,  284. 
Habeas  Corpus,  ad  Testificandum,  287. 

APPENDIX  NOTES,  288. 


THE  END. 


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